State v. Rodriguez

SCHALLER, J.,

concurring and dissenting. I agree with parts II, III, and IV of the majority opinion. I disagree, however, with the result reached in part I of the opinion, in which the majority concludes that the case must be remanded for a new trial. Accordingly, I respectfully dissent.

I take issue with the majority’s disposition of the state’s claim of inevitable discovery.1 The majority *606declines to consider this claim because the trial court made no findings on this issue, and “we cannot speculate as to what might have happened if the initial arrest had not taken place, including whether there might have been probable cause for a lawful arrest at some later time.” The majority concludes that this court would be required to engage in fact finding concerning the investigatory detention as well as probable cause.

I believe, to the contrary, that, in light of our Supreme Court’s decision in State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), the conclusion that the warrantless search of the defendant lacked probable cause does not require us to exclude the evidence unlawfully seized. Rather, it is appropriate to “remand the case to the trial court for further proceedings to determine whether the evidence illegally seized can be admitted under the ‘inevitable discovery’ exception to the exclusionary rule adopted by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). State v. Badgett, supra, 432-33.” State v. Miller, 29 Conn. App. 207, 235, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).

“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. [Nix v. Williams, supra, 467 U.S. 444.] To qualify for admissibility, the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional *607violation. United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985); United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1985). In Nix v. Williams, supra, 443, the United States Supreme Court observed that the operation of the exclusionary rule in situations where the police would have inevitably discovered the evidence by legal means already initiated would put the state in a worse position than it would have been in if no police misconduct had transpired. ‘Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.’ Id., 447.” (Emphasis in original.) State v. Badgett, supra, 200 Conn. 433.

In light of Nix v. Williams, supra, 467 U.S. 431, I would remand the case to the trial court to determine whether the inevitable discovery doctrine applies under the circumstances of this case. See State v. Badgett, supra, 200 Conn. 433-34; State v. Miller, supra, 29 Conn. App. 236. “Among the factors to be considered are: (1) whether [a search incident to a lawful arrest or] an inventory search would have been justified under the circumstances; (2) whether such a search would have been conducted according to standard [Hamden] police operating procedures; and (3) whether a search pursuant to these procedures would have uncovered the [the items taken from the defendant’s person on the evening of December 2, 1991, and the ring seized on December 3,1991].” State v. Badgett, supra, 434; see United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); United States v. Gale, 952 F.2d 1412, 1416 (D.C. Cir. 1992); United States v. Gorski, 852 F.2d 692, 696-97 (2d Cir. 1988).

Accordingly, I concur in parts II, III, and IV of the majority’s opinion, and dissent from part I.

The state raised on appeal the claim that the inevitable discovery exception to the exclusionary rule applies. It is not necessary that this claim be raised at trial in order to warrant appellate review. State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); but see State v. Billias, 17 Conn. App. 635, 637 n.3, 555 A.2d 448 (1989). In Billias, we cited the failure of the state to raise the claim at trial as one of the grounds for not granting review. In addition, here, the claim appeared in the state’s preliminary statement of issues and was fully briefed. See State v. Billias, supra, 637. Moreover, a remand being necessary, I do not reach the conclusion that there is no basis in the record for finding that “the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Emphasis in original.) State v. Badgett, supra, 433; see State v. Billias, supra, 637 n.3. Unlike Billias, therefore, this case does present an appropriate instance for remand to the trial court to determine whether the inevitable discovery exception to the *606exclusionary rule applies. State v. Badgett, supra, 433-34; State v. Miller, 29 Conn. App. 207, 235-36, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).