Fishbein v. Kozlowski

BERDON, J.,

dissenting. This court should interpret a statute without turning a blind eye to common sense1 *56and fundamental constitutional principles.2 The majority’s narrow interpretation of General Statutes (Rev. to 1995) § 14-227b (f), as amended by Public Acts 1995, No. 95-279, §§ 1 and 2,3 now § 14-227b (g), however, is *57not reflective of the legislature’s intent4 nor mindful of the constitutional consequences of that statutory construction. It is clear that for the defendant, the commissioner of motor vehicles (commissioner), to suspend a motor vehicle operator’s license, he must prove that a police officer had a reasonable and articulable suspicion that the driver had committed or was about to commit a crime to justify an investigatory stop of the automobile as aprecondition of the finding of “probable cause to arrest” and “placed under arrest” elements of § 14-227b (f). The majority comes to the contrary conclusion. This holding, which condones a police officer’s unconstitutional invasion of a person’s privacy, is simply unprecedented.

I

I must first address a matter of vital concern to me. The majority decision gives police officers carte blanche to practice racial profiling.5 The majority legitimizes a police officer stopping a person to determine if there was “ ‘probable cause to ar rest the person for *58operating a motor vehicle while under the influence of intoxicating liquor ....’” Accordingly, an African-American or a Hispanic, or for that matter anyone operating a motor vehicle, may be targeted, have her privacy invaded, and be humiliated and harassed based on the whim of a police officer. The officer can invade an individual’s privacy under the pretext of ascertaining probable cause that the person was operating her motor vehicle under the influence of alcohol or drugs without any reasonable and articulable suspicion that she was indeed operating under the influence or committing some other crime.6 This is not only contrary to any reasonable interpretation of § 14-227b (f) and unconstitutional, it simply flies in the face of the legislative policy prohibiting racial profiling as enacted in Public Acts 1999, No. 99-198.7 The ramifications of this decision for minorities is frightening.

The majority bypasses the concern about racial profiling by contending that the only consequence of a police *59officer stopping a citizen is an administrative hearing that may result in the suspension of her operator’s license. That misses the point: It is not the resulting administrative hearing that is of concern, but rather the initial invasion of a citizen’s privacy. This is not a totalitarian government but a democracy. We have a right to walk down the street or operate a motor vehicle without being harassed by the police. Our right of privacy should not be invaded unless the police officer has a reasonable and articulable suspicion that the person is violating the law.

According to the majority, we need not be concerned about this because we can assume that the police will not “expend scarce law enforcement resources to stop motorists whom they have no articulable reason to suspect of any offense on the mere chance of establishing probable cause.” This calls for two responses. First, it is obvious that the majority believes that we live in Alice’s Wonderland.8 Second, let us not just assume that the police will not interfere with a person’s privacy but let us mandate it by requiring that the officer have a reasonable and articulable suspicion.

II

As the procedural history reveals, both the trial court and the Appellate Court assumed that the police officer needed a reasonable and articulable suspicion to make the initial stop of the plaintiff, David Fishbein. The trial court held that although the police officer need not have probable cause to make an investigatory stop, he must have had a “reasonable and articulable suspicion that a person has committed or is about to commit a *60crime.” The trial court determined that the police officer had such grounds to stop the plaintiff9 and sustained the commissioner’s suspension of his driver’s license. The Appellate Court predicated its decision on the police officer’s stop being justified by a “reasonable and articulable suspicion,” and affirmed the trial court’s decision that there was such suspicion.10 Fishbein v. Kozlowski, 48 Conn. App. 552, 557, 711 A.2d 733 (1998). Judge Lavery of the Appellate Court dissented on the basis that the facts of this case did not reach the level of reasonable and articulable suspicion. Id., 561.

The majority of this court affirms the Appellate Court, not on the basis that the police officer had a reasonable and articulable suspicion, but, rather, that no such suspicion was required. In other words, a police officer, without more than the barest suspicion, may stop a citizen, infringe upon her constitutional rights and subsequently gain sufficient evidence to support probable cause to arrest her for operating a motor vehicle while *61under the influence of liquor or drugs in accordance with the requirements of § 14-227b (f) (1). The commissioner never advanced this argument. Rather, he argued merely that we should strictly construe the probable cause requirement of § 14-227b (f). The majority of this court, through its own advocacy, raised the issue and ordered rebriefing. The majority would do well if it would be as vigilant in protecting the constitutional rights of our citizens.

Ill

Judge Maloney in his well reasoned opinion in Field v. Goldberg, 42 Conn. Sup. 306, 618 A.2d 80 (1991), explicated the reasoning and the legislative history that clearly supports the requirement that an officer must have a reasonable and articulable suspicion to stop a vehicle as follows: “An axiomatic rule of statutory construction is that statutes ‘should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.’ 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988). The obvious purpose of the legislature in including the probable cause and arrest requirements in the administrative procedure on license suspensions was to ensure that that procedure would be subject to minimum basic constitutional safeguards. The legislative history of the administrative hearing statute, General Statutes § 14-227b (f), supports this interpretation. In 1981, the license suspension procedure was removed from the judicial system and transferred to the department of motor vehicles, which was charged with the responsibility of providing a hearing and determining whether a license should be suspended for violation of the per se law. See Public Acts 1981, No. 81-446; Volck v. Muzio, [204 Conn. 507, 515, 529 A.2d 177 (1987)]. In introducing and explaining [Public Act *6281-446] to the [S]enate, Senator Clifton A. Leonhardt remarked as follows: ‘Some people have raised the question does this Bill go too fax? Is it a little too stringent? And I would like to go through some of the protections that are built into the Bill. First of all, no one can be asked to be given this test [to measure blood alcohol content] unless they have been arrested for probable cause for driving under the influence so there has to be some independent source of the arrest; erratic driving, speeding and then the smelling of the breath and that sort of thing. The police officer has to have independent probable cause for administering the test . . . and then very importantly, the Bill makes provision for an immediate post suspension hearing ... so that the Constitutional due process rights of drivers are protected.’ 24 S. Proc., Pt. 18, 1981 Sess., pp. 5672-73. Later, speaking in support of the act, Senator Howard T. Owens, Jr., responded to a question concerning constitutional safeguards as follows: ‘Now, Senator [Eugene R.] Skowronski points out the fact that the tests or the safeguards for probable cause are not that great, but when I worked on this Bill with Senator Leonhardt, and when I worked on it in the Committee, one of the things, one of the alternatives that was given to us was that the police officer should have a right to stop anyone and give them a test and one of the things that I felt that was very important was that the probable cause be built in. For instance, before a test could be administered, that the probable cause had in fact, to be established first .... And I can say that I don’t think that the police officers will act arbitrarily and I think that that probable cause test that was put in there will make certain that before the test was given, that they have someone and that the test will be used merely to buttress what has already been shown to the police officer when he makes this arrest or in fact, the probable cause is established.’ Id., pp. 5685-86.” (Emphasis added.) Field v. Goldberg, supra, 315-16.

*63I agree with Judge Maloney that the legislature intended that basic constitutional protections apply to the license suspension procedure. The statutory requirements that there be “probable cause to arrest” and that the person be “placed under arrest” are constitutional guarantees that would be rendered meaningless unless this court requires that the police officer have a reasonable and articulable suspicion before making the initial stop. An investigatory stop can lead to further invasions into an individual’s privacy as she is subject to arrest, to invasive testing of her breath or blood alcohol content and to the suspension of her operator’s license. Given that a police officer’s unlawful stop of a suspect invalidates her subsequent arrest; State v. Scully, 195 Conn. 668, 678-79, 490 A.2d 984 (1985), an unconstitutional investigatory stop cannot be the basis of the license suspension procedure. The legislature’s inclusion of probable cause requires that a police officer take the necessary steps of finding a reasonable and articulable suspicion before attaining the heightened standard. This heightened standard is meaningless when the lower rungs of reasonable and articulable suspicion are removed and replaced with a police officer’s subjectivity.11

Field has been controlling law since 1991. The legislature, which has met in annual session at least seven times since Field was decided, did not amend it with respect to the requirement that there be a reasonable and articulable suspicion. “It is presumed that the legislature is mindful of judicial construction relevant to legislation it has enacted. ... It is further presumed that when the legislature subsequently acts with respect *64to a statute, it does so with full awareness of relevant judicial interpretations.” (Citations omitted; internal quotation marks omitted.) Davis v. Forman School, 54 Conn. App. 841, 845-46, 738 A.2d 697 (1999). Because the legislature visited § 14-227b by amending the subsection at issue four times since Field, including in 1998 by No. 98-182, § 20, of the 1998 Public Acts, wherein it completely reorganized § 14-227b, its intent has been made clear that reasonable and articulable suspicion is a requirement before a police officer can make an initial stop and invade the privacy of a person. If the legislature disagreed with Field, it surely would have amended § 14-227b to clarify the law. It did not do so. See Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993); Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992).

Other states with similar statutes which refer to the “arrest” of a person have concluded that the police officer must have a reasonable and articulable suspicion that the person has committed or is about to commit a crime. An Illinois implied consent statute providing that a suspect be “placed under arrest,” has been interpreted to require “a lawful and valid arrest.” People v. Krueger, 208 Ill. App. 3d 897, 903-904, 567 N.E.2d 717 (1991), cert. denied, 503 U.S. 919, 112 S. Ct. 1293, 117 L. Ed. 2d 516 (1992). The Illinois Appellate Court reasoned that “this construction is consistent with our duty to ascertain and give effect to the intent of the legislature and to avoid, if possible, a construction which would raise doubts regarding the constitutionality and validity of the statute. . . . [I]t is our duty to avoid a construction that would open the constitutionality of the implied-consent law to serious question. Although the State characterizes the issue in this case as whether to apply the exclusionary rule to a civil summary suspension proceeding, we believe that the real question before us is whether the statute affirmatively authorizes *65the Secretary of State to suspend a motorist’s license on the basis of a search which itself is the product of an unauthorized arrest. The Secretary’s power to impose a summary license suspension is derived from the statute, and we decline to read the statute as, in effect, authorizing unconstitutional arrests or searches and the imposition of new deprivations based on those unconstitutional arrests or searches.” (Citations omitted.) Id., 904-905. The court further noted that the state’s authority to suspend an operator’s license was based upon the operator’s consent to submit to blood alcohol tests as a condition of obtaining a license. “To hold that motorists waive their right to be free of unconstitutional arrests and searches as a condition of operating motor vehicles would do violence to the principle of implied consent.” Id., 905. Thus, operators do not consent to be subject to unreasonable searches and seizures.

Similarly, a Michigan implied consent statute providing that “ ‘[a] person who operates a vehicle upon the public highways of this state ... is arrested’ ” was interpreted to require a lawful arrest. Gallagher v. Secretary of State, 59 Mich. App. 269, 275, 229 N.W.2d 410 (1975). The Michigan Court of Appeals noted that “[w]e are acutely aware of what is at stake in this question of statutory construction. We have not the slightest inclination to dilute in the most minute degree the public purpose of apprehending and convicting intoxicated or impaired drivers. No less are we inclined to give a statute an unconstitutional interpretation and render nugatory all the good that was the legislative purpose in passing the act. We cannot conceive that the Legislature had the remotest intention ... to mean that law enforcement officers can on what they alone consider ‘reasonable grounds’ without any judicial restraint, supervision, or requirement of prior valid arrest, request a citizen to take a chemical test of bodily substances *66or suffer the grave penalty of license loss or suspension on refusal to comply. Hence we hold that the sine qua non to energize the statutory mandate of the ‘implied consent’ law is a prior valid arrest.” Id., 275-76.

A federal District Court struck down a South Dakota implied consent law as unconstitutional because it failed to require a lawful arrest. Holland v. Parker, 354 F. Sup. 196, 199 (D.S.D. 1973). “Thus it would seem that if a police officer, implementing search and seizure procedures in accordance with constitutional proscriptions, cannot require a person to take a blood test without a warrant unless there is a lawful arrest and emergency circumstances, then neither could the officer demand that a licensee submit to the blood test, without these same constitutional prerequisites, when refusal would result in automatic loss of his license. If it were any other way, the Fourth Amendment protections would be rendered valueless since asserting them would result in a penalty potentially more severe than conviction for the alleged public offense.” Id.

What the majority would have us believe is that when the legislature provided for the requirement that there be an “arrest,” it also meant an illegal arrest by a police officer who did not even have a reasonable and articula-ble suspicion. I cannot believe the legislature would intend, under any circumstances, that an operator’s license could be suspended as a result of an unconstitutional invasion of a person’s privacy.

Accordingly, I conclude that the state must prove as part of the statutory requirements of “probable cause to arrest” and that a “person was placed under arrest” that the police officer have a reasonable and articulable suspicion that the operator has committed or is about to commit a crime to justify the initial investigatory stop. I also agree "with Judge Lavery’s dissenting opinion that “[t]o satisfy the reasonable and articulable standard *67on [the] facts [of this case], in light of the totality of the circumstances presented here, there needed to be something more. There needed to be some overt act.” Fishbein v. Kozlowski, supra, 48 Conn. App. 560.

Accordingly, I dissent.

“This court traditionally eschews construction of statutory language which leads to absurd consequences and bizarre results.” (Internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 427, 572 A.2d 951 (1990); see also Caltabiano v. Planning & Zoning Commission. 211 Conn. 662, 667, 560 A.2d 975 (1989); State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985).

“We . . . indulge in every presumption in favor of the statute’s constitutionality . . . State v. Leary, 217 Conn. 404, 410, 587 A.2d 85 (1991); see also State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 100, 561 A.2d 917 (1989); Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988); State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). “We undertake this search for a constitutionally valid construction when confronted with criminal statutes as well as with civil statutes.” State v. Breton, supra, 269; see also State v. Leary, supra, 410; State v. Snook, 210 Conn. 244, 251, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Champagne, 206 Conn. 421, 437, 538 A.2d 193 (1988).

General Statutes (Rev. to 1995) § 14-227b (f), as amended by Public Acts 1995, No. 95-279, provides: “If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. At the request of such person or the hearing officer and upon a showing of good cause, the commissioner may grant one continuance for a period not to exceed fifteen days. If a continuance is granted, the commissioner shall extend the validity of the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section for a period not to exceed the period of such continuance. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under amest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses *57in criminal cases.” (Emphasis added.)

Section 14-227b (f) was amended further by Public Acts 1998, No. 98-102, §§20 and 22, whereby subsection (f) became subsection (g). To be consistent with the majority, references herein are to § 14-227b (f) as amended by Public Act 95-279. See footnote 8 of the majority opinion.

“ [W]hen called upon to interpret a statute, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” (Internal quotation marks omitted.) State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); see also State v. Leary, 217 Conn. 404, 410, 587 A.2d 85 (1991); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989).

Justice Norcott, writing for the majority in State v. Donahue, 251 Conn. 636, 648, 742 A.2d 775 (1999), noted a concern about the “insidious specter of‘profiling’. . . .” Justice Norcott wrote: “As defined in the racial context, ‘profiling’ has come to refer to the practice of ‘singling] out black and Hispanic drivers based on ostensible traffic violations and subjecting] them to criminal searches.’ . . . [T]he concern that is identified in the context of racial profiling is . . . that the constitutional rights of the defendant are violated as a result of a police stop predicated on no reasonable and articulable suspicion.” (Citations omitted.) Id., 648-49 n.11.

I am concerned about the overzealous police officer who readily acts on subjective rather than reasonable suspicions. Unfortunately, the majority fails to face the reality that Connecticut law enforcement officials continue to use racial and other types of profiling. Minorities who live in Connecticut and those who pay attention to news reports cannot help but come to this conclusion. Although those officers who do not live up to their oath by indulging in such subjective practices are probably few in number, their impact on justice and the quality of life for minority residents is enormous.

Public Acts 1999, No. 99-198, provides in relevant part the following: “Section 1.. . . (a) 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.

“(b) No member of the Division of State Police within the Department of Public Safety, a municipal police 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.

“(c) 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. . . .”

L. Carroll, Through the Looking Glass (Messner ed. 1982); Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 767, 699 A.2d 81 (1997) (McDonald, J., with whom Berdon, J., joined, dissenting); Doe v. Statewide Grievance Committee, 240 Conn. 671, 688, 694 A.2d 1218 (1997) (Berdon, J., dissenting).

The trial court, in upholding the police officer’s stop of the plaintiff, reasoned that “[i]n the case before the court, the police suspected the building in question of being a spot where illegal drug trafficking had taken place. They further were suspicious of the entire neighborhood, and that is presumedly why they were assigned to surveillance there.

“Those facts, combined with the very late hour, 2:15 in the morning, and the actual activity of the [plaintiffs] passenger going from the vehicle, going to the suspicious building, coming back and getting into the car were, in the court’s opinion, sufficient basis for stopping the vehicle to investigate further.”

The Appellate Court found that “[i]n this case, the police officers observed the plaintiffs vehicle at 2:15 a.m. on a street known for illicit drug sales. [The plaintiffs passenger] left the vehicle and went to the door of a residence reputed to be a place where drugs were sold. The door opened slightly and [she] had a brief conversation with an occupant.

“Under these circumstances, the officers had an objective basis to suspect that the plaintiff may have been involved in the pinchase of narcotics. The facts of this case support the determination that a reasonable and articulable suspicion existed to justify the stop of the plaintiffs vehicle. We conclude that the trial court properly dismissed the plaintiffs appeal.” Fishbein v. Kozlowski, 48 Conn. App. 552, 557, 711 A.2d 733 (1998).

Furthermore, it is apparent that the state agreed that the police must have a reasonable and arlieulable suspicion. After Field was decided in 1991, the stale initially appealed to the Appellate Court but withdrew that appeal six months later. Field v. Goldberg, supra, 42 Conn. Sup. 306 (footnote of Reporter of Judicial Decisions).