NORCOTT, J.
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 side of the Altima, informed him of the reason for the stop and requested his driver's license, registration and insurance papers. Morgan also questioned the defendant regarding his travel itinerary; the defendant told Morgan that he was returning from visiting his daughter in New York. The defendant then gave Morgan a New Jersey driver's license and a valid Pennsylvania rental agreement for the Altima. Morgan testified that, during this exchange and the remainder of the traffic stop, the defendant appeared "unusually nervous," gave "quick answers" to his questions and did not make eye contact with him.
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 § 21a-278(a) and (b),
The trial court, Alexander, J., following an evidentiary 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 of the stop was brief (no more than fifteen minutes); the conduct of the officer was professional and not overbearing; the defendant told the officer to check his vehicle for illegal items; [and] the defendant did not withdraw his consent at any time." Noting that it was appropriate for Morgan to ask the defendant to exit his car during the stop; see generally Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); the trial court then specifically declined to credit the defendant's claim that "his statement to the police that evening was meant only to have the officer look at the beer in his car," considering the defendant's spontaneous response to Morgan's inquiry about the presence of illegal items to be "unambiguous: go ahead and check." Following the denial of his motion to suppress, the defendant pleaded nolo contendere, conditioned on his right to appeal, pursuant to General Statutes § 54-94a,
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 tainted by that illegal detention and . . . the state failed to purge the taint of the illegal detention." State v. Jenkins, supra, 104 Conn.App. at 424, 934 A.2d 281. The Appellate Court stated that, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "[i]n determining if a seizure has exceeded the scope of a permissible motor vehicle stop, the court must determine whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances that justified the interference in the first place." State v. Jenkins, supra, at 427, 940 A.2d 809. Emphasizing that the validity of the initial stop was uncontested; id.; the Appellate Court then observed that "Morgan did not embark on his inquiry into whether the defendant was engaged in other illegal activity until after Morgan had (1) completed a check of the defendant's license and determined that it was valid and that there were no outstanding warrants for him, (2) examined the car rental agreement and determined that it appeared in order and that the time frame for the rental was valid and (3) returned to the defendant's vehicle, had him exit the vehicle and explained
Having concluded that the stop had been extended beyond the time necessary to effectuate its initial purpose, the Appellate Court then concluded that the state's evidence "did not establish that Morgan had reasonable suspicion to expand the scope of the stop into an inquiry of whether the defendant was engaged in illegal activity unrelated to the underlying stop or that Morgan was proceeding on anything more than a mere hunch. Therefore, once Morgan began to question the defendant about unrelated illegal activity, the formerly valid motor vehicle stop morphed into an illegally prolonged seizure of the defendant." Id., at 434, 940 A.2d 809. Applying the three factor test articulated in Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), to determine whether the taint of police misconduct has been attenuated,
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 Connecticut constitution, which he posits provides greater specific protections for motorists than does the federal constitution.
"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 II B of this opinion; we agree with the defendant that they present questions of law over which our review is plenary.
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, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007), and State v. Medina,
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.
Following the suppression hearing, at which Morgan testified briefly about the patdown,
After the defendant appealed to the Appellate Court, he contended specifically that, "(1) even if his consent to search the vehicle had been voluntary, it was tainted by a prior, unconstitutional search of his person, (2) the state failed to establish that he actually consented to the search of the vehicle, (3) any consent to search was not given voluntarily and (4) any consent to search was obtained by a violation of the Connecticut constitution by the police improperly converting a traffic stop into a criminal investigation."
Subsequently, the Appellate Court agreed with the state's argument that "the issue of whether the defendant's person was illegally searched was not raised in the trial court and that the record is inadequate to establish whether the defendant consented to the search of his person," and noted that, "even if we assume arguendo that an illegal search of the defendant's person occurred, this, in and of itself, does not necessarily invalidate the search of the defendant's car." State v. Jenkins, supra, 104 Conn.App. at 428 n. 11, 934 A.2d 281. Nevertheless, after determining that the defendant's consent followed an unlawfully prolonged detention, the Appellate Court, in applying the three factor attenuation test articulated in Brown v. Illinois, supra, 422 U.S. at 603-604, 95 S.Ct. 2254; see footnote 13 of this opinion; the third factor of which considers the "purpose and flagrancy of the police misconduct"; Brown v. Illinois, supra, at 604, 95 S.Ct. 2254; stated that: "Morgan testified that he conducted a patdown search of the defendant although he did not believe that the defendant was armed. While the record is inadequate to determine whether the defendant's person was illegally searched, it is
Before this court, the defendant renews his argument, accepted by the Appellate Court, that, under Brown v. Illinois, supra, 422 U.S. at 603-604, 95 S.Ct. 2254, 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 Court, namely, that his consent was involuntary because the "search of [the defendant's] person signified that he was already being treated as if he were under arrest," and the patdown violated "a fundamental principle of constitutional law that [the] police may not touch a citizen without justification."
The defendant's various claims in this certified appeal are an amalgam of issues both preserved and unpreserved in the trial court. With respect to those issues that are unpreserved, he seeks review pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, 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. at 42, 901 A.2d 1, 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 the defendant's home], the search was constitutionally infirm because the defendant's mother, who was present when the police obtained the father's consent, declined to consent to the search." Specifically, before the trial court, the defendant's motion to suppress bloody clothing found in the home where he had lived with his parents, and the confession that followed his arrest, focused solely on the validity of his father's consent to the search, on the ground that his father had been improperly induced to agree to the search. Id., at 48-49, 901 A.2d 1. The suppression hearing transcript subsequently revealed that the defendant's mother had refused to sign the written consent form proffered by the police, but neither the state nor defense counsel inquired further about the mother's refusal to sign the consent form, despite the fact that she had testified at the hearing. Id., at 49-50, 901 A.2d 1. The trial court's ruling on the defendant's motion to suppress concluded that "the defendant's father's consent to search was knowing and voluntary, and, therefore, constitutionally
We thereafter concluded that the record was inadequate for review of the defendant's joint consent claim under the first prong of Golding. Id., at 56-64, 901 A.2d 1. 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 marks omitted.) Id., at 56, 901 A.2d 1. We disagreed with the defendant's reliance on testimony that his mother had declined to sign the consent form, and emphasized that, "the act of declining to sign a consent to search form is not tantamount to a refusal to consent to the search; rather, it is simply one of several relevant factors that a court considers in determining the validity of a consent to search.... Because the refusal to sign a consent to search form is one of several factors to be considered in determining the validity of consent, such refusal does not vitiate consent otherwise found to be valid in light of all of the circumstances." (Citation omitted; emphasis in original.) Id.
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."
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,
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 routine traffic stop. If we conclude that they were, we then must address the defendant's alternative grounds for affirmance under the federal constitution, namely that: (1) his consent was not voluntary; and (2) Morgan's search exceeded the scope of the defendant's consent.
The state, relying on Arizona v. Johnson, supra, 129 S.Ct. 781, and Ohio v. Robinette, supra, 519 U.S. 33, 117 S.Ct. 417, claims that, under the restrictions of Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, 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. 1, 88 S.Ct. 1868.
"It is well established, however, that [t]he police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.... The authority to permit a reasonable search for weapons for the protection of the police officer is narrowly drawn applying only where he has reason to believe that he is dealing with an armed and dangerous individual.... The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (Citations omitted; internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 631-32, 899 A.2d 1 (2006).
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 [a]mendment 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 as the time reasonably needed to effectuate those purposes." (Citation omitted; internal quotation marks omitted.) United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Thus, the Supreme Court has rejected attempts to impose "a hard-and-fast time limit" on Terry stops, in favor of a reasonableness inquiry where, "[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.... A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." (Citations omitted.) Id., at 686, 105 S.Ct. 1568.
Applying this reasoning in the traffic stop context, the United States Supreme Court recently followed Muehler v. Mena, supra, 544 U.S. at 100-101, 125 S.Ct. 1465, 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,
Accordingly, decisions in the wake of Arizona v. Johnson, supra, 129 S.Ct. 781, 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
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. at 111 and n. 6, 98 S.Ct. 330, 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 at 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 giving it to him.
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 interrogation. Some of the factors taken into account have included the youth of the accused ... his lack of education ... or his low intelligence ... the lack of any advice to the accused of his constitutional rights ... the length of detention... the repeated and prolonged nature of the questioning ... and the use of physical punishment such as the deprivation of food or sleep...." (Citations omitted.) Schneckloth v. Bustamonte, supra, 412 U.S. at 226, 93 S.Ct. 2041. In analyzing these factors, the Supreme Court noted that it had "determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted." Id.
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., at 249, 93 S.Ct. 2041. 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. at 40, 117 S.Ct. 417 (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 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); see also id., at 424-25, 96 S.Ct. 820 (The court noted that consent was given on public street, "not in the confines of the police station," and that "[t]here was no overt act or threat of force against [the defendant] proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment."); State v. Winot, 95 Conn.App. 332, 349, 897 A.2d 115 (2006) (The defendant's consent, given while under arrest in the back of a police cruiser, was voluntary because he "does not claim to have been threatened in any way by anyone at the scene. He has not alleged that improper promises were made to him or that he was subjected to any other more subtle forms of coercion that might improperly have impaired his judgment."),
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 turnpike. The defendant has not proffered any evidence to contradict, or demonstrated a void of supporting evidence, with respect to the trial court's finding that "there was no untoward conduct on the part of either ... Morgan or ... Sutton" and that "there was no threatening, coercive or overpowering behavior exhibited at any time during this incident." The fact that the police officers were armed with their duty sidearms does not render the atmosphere coercive, particularly as there is no evidence
The defendant next proffers a second ground for affirming the judgment of the Appellate Court, namely, that the state did not prove that he actually had consented to a complete search of the Altima's passenger compartment. Relying on Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), the defendant contends that, by extensively searching his car, Morgan exceeded the scope of his consent, which he claims was limited only to an invitation to check for beer on floor by the passenger seat. In response, the state also relies on Jimeno and argues that it was objectively reasonable for Morgan to construe the defendant's invitation as an actual consent to a search. We agree with the state and conclude that it was objectively reasonable for Morgan to interpret the defendant's consent as extending to a search of the Altima's passenger compartment and unlocked storage areas therein.
"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., at 251, 111 S.Ct. 1801. "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
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.
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....
"The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party—the state or the defendant—can respond; and they encourage a principled development of our state constitutional jurisprudence. Although in Geisler we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven.... [N]ot every Geisler factor is relevant in all cases." (Citation omitted.) State v. Morales, 232 Conn. 707, 716 n. 10, 657 A.2d 585 (1995). Moreover, a proper Geisler analysis does not require us simply to tally and follow the decisions favoring one party's state constitutional claim; a deeper review of those decisions' underpinnings is required because we follow only "persuasive" decisions. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 240-41, 957 A.2d 407 (2008) ("the state court cases that have determined that gay persons do not constitute a quasi-suspect class, like the federal cases described in this part of the opinion, employed a flawed analysis, and, therefore, they do not constitute persuasive authority").
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. at 121, 547 A.2d 10; see also, e.g., Washington v. Meachum, 238 Conn. 692, 719, 680 A.2d 262 (1996) (describing provisions as "virtually identical"). Although the "linguistic similarity undermines the defendant's contention that the state constitution provides a greater opportunity to challenge the legality of a search than the federal constitution"; State v. Davis, 283 Conn. 280, 306, 929 A.2d 278 (2007); our inquiry does not end here, because "this court has never considered itself bound to adopt the federal interpretation in interpreting the Connecticut constitution. Our
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, supra, 129 S.Ct. 781, and Muehler v. Mena, supra, 544 U.S. 93, 125 S.Ct. 1465.
With respect to the relevant constitutional history, we agree with the defendant that the "original 1818 state constitution predates the automobile age," and that article first, § 7, "was adopted in the automobile age and should be interpreted to include protection of individual citizens while in cars from the abuse of governmental power." With respect, however, to whether the historical circumstances surrounding the adoption of article first, § 7, support the defendant's claim to greater protections under that provision than are afforded by the federal constitution, we have stated that "[t]he declaration of rights adopted in 1818 appears to have its antecedents in the Mississippi constitution of 1817, which in turn derived from the federal bill of rights and the Virginia declaration of rights of 1776.... The search and seizure provision in our 1818 constitution, then article first, § 8, closely resembles the fourth amendment to the United States constitution. Although its enumeration was changed to article first, § 7, when the 1965 constitution incorporated article first, § 4, into article seventh, its language has not been altered since its original adoption.... The language of article first, § 7, which was based upon the fourth amendment, was adopted with little debate.... Thus, the circumstances surrounding the adoption of article first, § 7, lend weight to the view that, in most cases, a practice permitted under the fourth amendment is permissible under article first, § 7." (Citations omitted; internal quotation marks omitted.) State v. Mikolinski, supra, 256 Conn. at 548-49, 775 A.2d 274; see also State v. Davis, supra, 283 Conn. at 316, 929 A.2d 278 ("it reasonably may be argued that the lack of any evidence indicating that article first, § 7, was intended to be more broadly protective of privacy rights than the fourth amendment gives rise to a contrary inference").
The defendant relies specifically on state constitutional case law from ten states, Alaska, Kansas, Massachusetts, Minnesota, Montana, New Jersey, Pennsylvania, Vermont, Washington and Wyoming in support of his argument that we should interpret article first, § 7, to preclude, in the context of a routine traffic stop, requests for consent to search and other questioning unrelated to the purpose of the stop.
In our view, the most comprehensive and persuasive of these cited decisions is State v. Carty, 170 N.J. 632, 635, 790 A.2d 903, modified, 174 N.J. 351, 806 A.2d 798 (2002), wherein the New Jersey Supreme Court concluded, under that state's constitution, that "in order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." The court emphasized its long history of elevating state constitutional protections beyond those provided by the fourth amendment in the area of consent searches, including its separate requirement, in contravention of Schneckloth v. Bustamonte, supra, 412 U.S. at 248-49, 93 S.Ct. 2041, that individuals give knowing and voluntary consent to searches. State
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. at 408-409, 125 S.Ct. 834, 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, 790 A.2d 903, but emphasized a reasonableness inquiry influenced by local factors, specifically, the fact that Wyoming's "location along a nationally recognized drug trafficking corridor likely results in a disproportionately large percentage of Wyoming's disproportionately small population being subjected to what have become routine requests to relinquish their privacy rights by detention, invasive questioning and searches—all without reasonable suspicion of criminal
With respect to state constitutional decisions issued after the United States Supreme Court's decision in Muehler v. Mena, supra, 544 U.S. 93, 125 S.Ct. 1465, 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, ___ U.S. ___, 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, at 100-101, 125 S.Ct. 1465, 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 [f]ourth [a]mendment... and [the state constitution]."
Finally, we find the Alaska Court of Appeals decision in Brown v. State, 182 P.3d 624 (Alaska App.2008), to lack persuasive value because of a significant internal inconsistency in the opinion. The Alaska court relied on a comprehensive survey of academic literature and existing case law; id., at 630-32; in support of its determination that "federal law does not afford sufficient protection to motorists
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 pretextual stops. The defendant cites General Statutes § 54-1l et seq., the Alvin W. Penn Racial Profiling Prohibition Act, which, inter alia, prohibits law enforcement officers from "engag[ing] in racial profiling" and provides in relevant part that "[t]he detention of an individual based on any noncriminal factor or combination of noncriminal factors is inconsistent with this policy."
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. at 647-49, 613 A.2d 1300. 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, 790 A.2d 903. 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. at 161, 99 P.3d 191 (declining to follow Carty because defendant "does not argue—much less establish—that Montana law enforcement officers are abusing their authority"); Commonwealth v. Strickler, supra, 563 Pa. at 80-81 n. 28, 757 A.2d 884 (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, supra, 117 P.3d at 411-12 (adopting state constitutional reasonableness inquiry influenced by local factors). Lastly, although the defendant's proposal finds some support in the academic community, those studies do not indicate that adoption of the defendant's
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.
KATZ, J., 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 move toward a more restrictive view of the fourth amendment than previously had been established under federal law. I disagree, however, with the majority's conclusion in part III of its opinion that the conduct in the present case did not violate the Connecticut constitution solely because Morgan's request for consent to search the defendant's vehicle did not measurably extend the duration of the traffic stop.
"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. Geisler, [supra, 222 Conn. at 684-86, 610 A.2d 1225], 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).
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.
As I previously have noted herein, I do not dispute the majority's conclusion that
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. ___, 129 S.Ct. 781, 786, 172 L.Ed.2d 694 (2009); State v. Wilkins, supra, 240 Conn. at 508-509, 692 A.2d 1233. 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, at 24, 88 S.Ct. 1868].... 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. at 17-19, 88 S.Ct. 1868. 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 action as by imposing preconditions upon its initiation.... The entire deterrent purpose of the rule excluding evidence seized in violation of the [f]ourth [a]mendment rests on the assumption that limitations upon the fruit to be gathered tend to limit the quest itself." (Citation omitted; internal quotation marks omitted.) Id., at 28-29, 88 S.Ct. 1868. Subsequently, in Florida v. Royer, supra, 460 U.S. at 500, 103 S.Ct. 1319, the court clarified that "[t]he scope of [an investigative] detention must be carefully tailored to its underlying justification ... [and the] investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop."
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
The United States Supreme Court recently seemed to refute this reasonableness in manner approach in Arizona v. Johnson, supra, 129 S.Ct. at 783, 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., at 788. 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 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), neither of which involved Terry stops, or searches that were independent of the underlying justifications. See Arizona v. Johnson, supra, at 788; Muehler v. Mena, supra, at 101, 125 S.Ct. 1465.
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 v. Wilkins, supra, 240 Conn. at 507, 692 A.2d 1233 ("[a]rticle first, §§ 7 and 9, of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest" [emphasis added]); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) ("circumscribed nature" of Terry stop minimizes risk of due process violation under Connecticut constitution); State v. Edwards, 214 Conn. 57, 72, 570 A.2d 193 (1990) ("[a] Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which that stop was made" [internal quotation marks omitted]); State v. Carter, 189 Conn. 611, 618,
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 commit a crime"; (internal quotation marks omitted) State v. Nash, 278 Conn. 620, 632, 899 A.2d 1 (2006); while a Terry frisk requires that the officer has "a reasonable and articulable suspicion that a suspect is armed and dangerous before [he] may commence a protective patdown search during an investigative stop." Id., at 633, 899 A.2d 1. Indeed, we have cautioned that, "[b]efore [a police officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." (Internal quotation marks omitted.) Id., at 631, 899 A.2d 1. Like the transition from a Terry stop to a Terry frisk, the transition from a routine traffic stop to a consent search involves a shift in purpose and procedure. As such, our precedents suggest this shift must be grounded in reasonable suspicion relevant to the police encounter's new direction, namely, reasonable and articulable suspicion of criminal activity unrelated to the initial routine traffic violation.
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, ___ U.S. ___, 129 S.Ct. 628, 172 L.Ed.2d 639 (2008), the Kansas Supreme Court held that "we continue to adhere to our long-standing rule that consensual searches [unrelated to the grounds for a traffic stop] during the period of a detention for a traffic stop are invalid under the [f]ourth [a]mendment to the United States [c]onstitution and § 15 of the Kansas [c]onstitution [b]ill of [r]ights."
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., at 640, 790 A.2d 903. 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., at 647, 790 A.2d 903. The court explained that "[t]he requirement of reasonable and articulable suspicion is derived from our [s]tate [c]onstitution
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 subject to both a federal decree and state police policy limiting coercive investigatory techniques; and (3) the court had before it an extensive factual record demonstrating the violation of the federal decree and state police policy. Despite these distinctions, however, there are several reasons why Carty is relevant and persuasive. First, although this court has not afforded greater protections than the federal courts concerning consent searches specifically, this court also has found that the Connecticut constitution provides greater protection against official searches and seizures, generally. See State v. Wilkins, supra, 240 Conn. at 504-505, 692 A.2d 1233; State v. Miller, supra, 227 Conn. at 379-80, 630 A.2d 1315; State v. Geisler, supra, 222 Conn. at 690, 610 A.2d 1225; State v. Marsala, supra, 216 Conn. at 159-60, 579 A.2d 58; State v. Dukes, supra, 209 Conn. at 122-23, 547 A.2d 10. Second, although the New Jersey Supreme Court notes that its holding is consistent with the consent decree and state police policy limiting coercive investigatory techniques, it does not rely exclusively upon them. State v. Carty, supra, 170 N.J. at 647, 790 A.2d 903. Finally, much of the data before the court merely corroborated significant legal
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., at 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 burned-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., at 128-29, 137]. We reversed the defendants' convictions holding, among other things, that under [a]rticle [first], [§] 10, of the Minnesota [c]onstitution any expansion of the scope or duration of a traffic stop must be justified by a reasonable articulable suspicion of other criminal activity. [Id., at 135]." State v. Fort, supra, at 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., at 419. Accordingly, the court affirmed the trial court's order suppressing evidence discovered during the consent search.
Similarly, the Court of Appeals of Alaska recently held that "an officer's questions about other potential crimes, and an officer's requests for permission to conduct a search, are significant events under the search and seizure provision of the Alaska [c]onstitution, [article first, § 14]. More specifically, we conclude that, under the circumstances presented in this case, the officer conducting the traffic stop was prohibited from requesting [the defendant's] permission to conduct a search that was (1) unrelated to the basis for the stop and (2) not otherwise supported by a reasonable suspicion of criminality." Brown v. State, 182 P.3d 624, 626 (Alaska App. 2008). In reaching this conclusion, the court acknowledged that federal precedents, including Muehler v. Mena, supra, 544 U.S. at 93, 125 S.Ct. 1465, did not
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 at
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.)
In the present case, the Appellate Court thoroughly reviewed the circumstances surrounding the stop and concluded as a matter of law that the state "did not establish that [Officer] Morgan had reasonable suspicion to expand the scope of the stop into an inquiry of whether the defendant was engaged in illegal activity unrelated to the underlying stop or that Morgan was proceeding on anything more than a mere hunch." State v. Jenkins, supra, 104 Conn.App. at 434, 934 A.2d 281. My own review of the record leads me to the same conclusion. Accordingly, I conclude that the consent search was invalid under article first, § 7, of the Connecticut constitution. Therefore, I respectfully dissent from the majority's decision reversing the judgment of the Appellate Court.
PALMER, J., 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.
I agree with the majority that neither the text nor the constitutional history of article first, § 7, of the Connecticut constitution supports the defendant's claim that the state constitution affords greater protection than the federal constitution with respect to a request for consent to search a vehicle made by a police officer in connection with a routine traffic stop. I disagree, however, with the majority's analysis of the remaining Geisler factors,
As the majority observes, in Schneckloth v. Bustamonte, 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., at 227, 93 S.Ct. 2041. 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.
In Schneckloth, the court commenced its analysis by observing that "[t]he most extensive judicial exposition of the meaning of `voluntariness' has been developed in those cases in which the [c]ourt has had to determine the `voluntariness' of a defendant's confession for purposes of the [f]ourteenth [a]mendment." Id., at 223, 93 S.Ct. 2041. A review of these cases, the court explained, reveals "no talismanic definition of `voluntariness,' mechanically applicable to the host of situations [in which] the question has arisen.... It cannot be taken literally to mean a `knowing' choice." (Citation omitted.) Id., at 224, 93 S.Ct. 2041. "Rather, `voluntariness' has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws.... At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice." (Citations omitted.) Id., at 224-25, 93 S.Ct. 2041. The court further explained that, in light of these competing concerns, it traditionally has framed the test for voluntariness as whether "the confession [is] the product of an essentially free and unconstrained choice by its maker...." Id., at 225, 93 S.Ct. 2041. In making this determination, the court made clear that the totality of the circumstances must be considered, and, although the accused's awareness of his constitutional rights is one of several factors relevant to that determination, it is not a dispositive factor. Id., at 226-27, 93 S.Ct. 2041.
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 `voluntary' consent —the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id., at 227, 93 S.Ct. 2041. In reaching this conclusion, the court observed that, in cases in which the police may "have some evidence of illicit activity, but lack probable cause to arrest or search," consent searches serve a vital purpose because they "may be the only means of obtaining important and reliable evidence." Id. These searches, the court
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., at 229, 93 S.Ct. 2041. 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., at 229-30, 93 S.Ct. 2041. "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., at 230, 93 S.Ct. 2041.
The court in Schneckloth acknowledged that the police officer seeking consent to search the vehicle in that case simply could have informed the subject of the traffic stop that he had the right to withhold such consent. The court, however, rejected that approach, reasoning as follows: "One alternative that would go far toward proving that the subject of a search did know [that] he had a right to refuse consent would be to advise him of that right before eliciting his consent....[I]t would be thoroughly impractical [however] to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights.... And, while surely a closer question, these situations are still immeasurably far removed from `custodial interrogation' where, in Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], we found that the [c]onstitution required certain now familiar warnings as a prerequisite to police interrogation." (Citation omitted.) Schneckloth v. Bustamonte, supra, 412 U.S. at 231-32, 93 S.Ct. 2041.
The court in Schneckloth also rejected the respondent's contention that, because "`consent' is a waiver of a person's rights under the [f]ourth and [f]ourteenth [a]mendments," to establish waiver, the state must be required to "demonstrate `an intentional relinquishment or abandonment of a known right or privilege.'" Id., at 235, 93 S.Ct. 2041. In so concluding, the court observed that a knowing and intelligent waiver is not required whenever a subject declines to invoke a constitutional protection; instead, waiver analysis applies only to those rights needed to protect the fairness of a trial or trial-type proceeding.
"`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. at 466, 86 S.Ct. 1602]." (Emphasis in original.) Schneckloth v. Bustamonte, supra, 412 U.S. at 240, 93 S.Ct. 2041.
The court continued: "[T]here is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the [f]ourth [a]mendment." Id., at 241, 93 S.Ct. 2041. 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., at 242, 93 S.Ct. 2041. In support of this assertion, the court relied on its prior determination that "there is no likelihood of unreliability or coercion present in a search-and-seizure case...." (Citation omitted; internal quotation marks omitted.) Id. Consequently, the court maintained, "it cannot be said [that] every reasonable presumption ought to be indulged against voluntary relinquishment.... [I]t is no part of the policy underlying the [f]ourth and [f]ourteenth [a]mendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.... Rather, the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may [e]nsure that a wholly innocent person is not wrongly charged with a [crime]." (Citation omitted; internal quotation marks omitted.) Id., at 243, 93 S.Ct. 2041.
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., at 243-44, 93 S.Ct. 2041. 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., at 245, 93 S.Ct. 2041.
Finally, the court explained that Miranda does not compel a knowledge requirement in the context of a consent search. Id., at 246, 93 S.Ct. 2041. 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., at 275-76, 93 S.Ct. 2041 (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., at 277, 93 S.Ct. 2041 (Brennan, J., dissenting).
Justice Marshall's dissent has been celebrated by commentators and scholars. See, e.g., A. Loewy, "Knowing `Consent' Means `Knowing Consent': The Underappreciated Wisdom of Justice Marshall's Schneckloth v. Bustamonte Dissent," 79 Miss. L.J. 97, 104-108 (2009). Justice Marshall begins his dissent with the observation that, "[s]everal years ago, [Justice Potter Stewart, the author of the majority opinion in Schneckloth] reminded us that `[t]he [c]onstitution guarantees ... a society of free choice. Such a society presupposes the capacity of its members to choose.' Ginsburg [Ginsberg] v. New York, 390 U.S. 629, 649 [88 S.Ct. 1274, 20 L.Ed.2d 195] (1968) ([Stewart, J.] concurring in result). I would have thought that the capacity to choose necessarily depends [on] knowledge that there is a choice to be made. But ... the [majority in Schneckloth] reaches the curious result that one can choose to relinquish a constitutional right—the right to be free [from] unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request to search." Schneckloth v. Bustamonte, supra, 412 U.S. at 277, 93 S.Ct. 2041 (Marshall, J., dissenting). In Justice Marshall's view, because the United States Supreme Court always had "scrutinized with great care claims that a person has forgone the opportunity to assert constitutional rights," there is no reason why that analysis should not apply with equal force to the issue of "whether a simple statement of assent to search, without more, should be sufficient to permit the police to search and thus act as a relinquishment of [that person's] constitutional right to exclude the police." Id., at 278, 93 S.Ct. 2041 (Marshall, J., dissenting).
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 the information can be given without disrupting the casual flow of events.... What evidence there is, then, rather strongly suggests that nothing disastrous would happen if the police, before requesting consent, informed the subject that he ha[s] a right to refuse consent and that his refusal would be respected." (Citations omitted.) Id., at 287-88, 93 S.Ct. 2041 (Marshall, J., dissenting).
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 [c]onstitution." (Citations omitted.) Id., at 288-89, 93 S.Ct. 2041 (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 Robinette, 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 attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase "[a]t this time you legally are free to go" or by words of similar import.'" Id., at 36, 117 S.Ct. 417. The United States Supreme Court rejected the rule announced by the Supreme Court of Ohio as a matter of federal constitutional law.
Before addressing the merits of the court's reasoning in Schneckloth, it bears emphasis that, in considering the value of applicable federal precedent in the context of a Geisler analysis, it is necessary to consider that precedent's persuasive value. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 230-31, 957 A.2d 407 (2008) ("[we examine federal] precedent for guidance and analogy [in construing our own constitution but only] when [those] authorities are logically persuasive and well-reasoned" [internal quotation marks omitted]); cf. State v. Brunetti, 276 Conn. 40, 115, 883 A.2d 1167 (2005) (Palmer, J., dissenting) ("a judicial opinion must be judged not on the number of votes that it has garnered but on its reasoning"), superseded by State v. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). Thus, when this court undertakes an independent analysis of the meaning of article first, § 7, of the state constitution, it may reject as lacking in persuasive force, for state constitutional purposes, precedent of the United States Supreme Court construing the analogous provisions of the fourth amendment to the federal constitution. Indeed, not infrequently, this court, in interpreting article first, § 7, has rejected the reasoning and holding of a majority opinion of the United States Supreme Court and, instead, expressly or implicitly adopted the reasoning employed by one or more dissenting justices of that court. See, e.g., State v. Miller, supra, 227 Conn. at 377, 630 A.2d 1315 (declining to adopt rule in Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 [1970], as matter of state constitutional law, and holding, in accordance with rationale of concurrence and dissent of Justice John M. Harlan in Chambers, that warrantless search of automobile impounded by police that is not performed for inventory purposes is violation of article first, § 7); State v. Oquendo, 223 Conn. 635, 649-52, 613 A.2d 1300 (1992) (declining to adopt restrictive definition of seizure adopted in California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d
The analysis employed by the court in Schneckloth has been widely criticized by legal scholars. See, e.g., United States v. Gagnon, 230 F.Supp.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," 1997 U. Ill. L.Rev. 215, 218
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 situationally 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., at 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 to continue their embrace of the ... position that a reasonable motorist, having been seized, would conclude he was free to leave [even though not told so] in the face of ongoing police interrogation"); T. Maclin, "The Good and Bad News About Consent Searches in the Supreme Court," 39 McGeorge L.Rev. 27, 28 (2008) ("everyone... knows ... [that] a police `request' to search a bag or automobile is understood by most persons as a `command'"); M. Strauss, "Reconstructing Consent," 92 J.Crim. L. & Criminology 211, 219 n. 29 (2001) ("Except [when] consent is required in a person's home, it is often sought in areas unfamiliar and intimidating. How many of us feel like we are on `familiar territory' when pulled over to the side of the road by a police car or two?"); M. Strauss, supra, at 235 (Schneckloth "ignor[es] the most significant factor of all: the inevitability that individuals will feel coerced simply by virtue of dealing with an authority figure like the police"); R. Weaver, "The Myth of `Consent'," 39 Tex. Tech L.Rev. 1195, 1199 (2007) ("The Schneckloth decision is ... troubling because it ignores the realities of police-citizen encounters and the inherent pressures on individuals to comply with police requests.... [W]hen a police officer requests permission to search, the police officer inevitably retains a distinct psychological advantage over the suspect."); A. Barrio, supra, 1997 U. Ill. L.Rev. at 233 ("[t]he most baffling aspect of the [United States] Supreme Court's conception of voluntary consent is that it virtually ignores the well-documented observation that most people mechanically obey legitimate authority"); cf. G. Dery, "`When Will This Traffic Stop End?': The United States Supreme Court's Dodge of Every Detained Motorist's Central Concern —Ohio v. Robinette," 25 Fla. St. U.L.Rev. 519, 559-60 (1998) (observing that United States Supreme Court's statements regarding relative positions of power between police officer and citizen are
Indeed, drawing on relevant empirical studies, several commentators have concluded that the dissenting justices in Schneckloth were correct in that individuals tend to see an officer's request for consent as a demand. See M. Strauss, supra, 92 J.Crim. L. & Criminology at 236-42. For example, it seems evident, on the basis of empirical research regarding obedience to authority and uniform, that individuals "attribute legitimacy to the police officer's uniform [and] that they obey police authority reflexively." A. Barrio, supra, 1997 U. Ill. L.Rev. at 243; see also J. Burkoff, "Search Me?," 39 Tex. Tech L.Rev. 1109, 1138 (2007) ("most people do not expect that they have the right not to accede a police officer's request that a search be authorized" [internal quotation marks omitted]). Consequently, "the weight of scientific authority suggests that a suspect's ignorance of fundamental [f]ourth [a]mendment rights must be viewed as a state of mind that renders a suspect's consent involuntary." A. Barrio, supra, at 247; see also id., at 240 ("[the] obedience theory casts serious doubt on the continued vitality of what Schneckloth characterized as Miranda's central holding: that custody is a necessary prerequisite for a finding of psychological coercion"). Thus, "[t]o curb the coercive power of police authority, the police officer should be required to advise the suspect of his right to withhold consent prior to requesting his permission to search. Such a warning would combat the obedience phenomenon by assuring the suspect both that he is under no obligation to give consent and that the investigating officer is `prepared to recognize his privilege.'" Id., at 247; see also 4 W. LaFave, Search and Seizure (4th Ed.2004) § 8.2(i), pp. 111-12 (expressing support for such approach).
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 police officer's request for permission to search his or her vehicle. According to the court in Schneckloth, there is no reason to believe that the subject of such a stop will view the encounter as coercive because the search "occur[s] on [the driver's] own familiar territory [where] the specter of incommunicado police interrogation in some remote station house is ... inapposite." Schneckloth v. Bustamonte, supra, 412 U.S. at 247, 93 S.Ct. 2041. Of course, there can be no doubt that police interrogation of a person held incommunicado and far from home gives rise to a legitimate concern about the voluntariness of any statement obtained as a result of such interrogation, and so, too, is the voluntariness of the defendant's consent to search open to serious doubt. The defendant, an African-American from out of state and traveling alone, was stopped by Detective Morgan shortly before midnight and pulled over in a dark area of the Berlin Turnpike. Morgan operated an unmarked car but was dressed in full police uniform and possessed a firearm, a utility belt with handcuffs, pepper spray and a flashlight, all in plain view. While preparing the traffic citation in his cruiser, Morgan called for a backup police officer because, unbeknownst to the defendant, Morgan intended to request that the defendant consent to a search of his vehicle. That backup officer, Sergeant Derrick Sutton, who also was in full police uniform, arrived before Morgan had returned to the defendant's vehicle. At that point, ten to fifteen minutes had passed since the defendant had been stopped. Morgan then approached the defendant and told him to exit his car. Morgan explained the citation to the defendant but did not give it to
It is fanciful to think that the circumstances that led to the search of the defendant's vehicle did not give rise 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 motorists were apprised of their right to refuse such consent, and, consequently, assertion of court in Schneckloth that such advisement would jeopardize continued viability of consent searches was "[c]learly ... unfounded"); M. Phillips, Note, "Effective Warnings Before Consent Searches: Practical, Necessary, and Desirable," 45 Am.Crim. L.Rev. 1185, 1201 (2008) (citing study demonstrating that approximately 88 percent of motorists agree to consent search after being advised verbally and in writing of right to refuse consent). These findings should not be surprising in light of the fact that approximately 84 percent of suspects who have been advised of their rights in accordance with Miranda nevertheless waive their right to remain silent and comply with a request by the police for a statement. See S. Chanenson, "Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches," 71 Tenn. L.Rev. 399, 442 (2004).
Although this 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. at 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
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. at 229-30, 93 S.Ct. 2041; 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., at 231-32, 93 S.Ct. 2041. 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 the motorist of the right to withhold consent and that he or she was free to leave upon choosing that option. Indeed, in the ordinary case, the state's burden would be readily satisfied by testimony from the police officer that the subject of the stop was so advised. The court's second assertion, namely, that it would be "thoroughly impractical" to require the police to give such an advisement; id., at 231, 93 S.Ct. 2041; also is dubious. The advisement would take but a few seconds and easily could be given at the same time that the officer seeks the motorist's consent to search. See, e.g., M. Phillips, supra, 45 Am.Crim. L.Rev. at 1185-86 (observing that high courts of several states have required police to provide warnings before seeking consent to search and asserting that "[a] review of the experience[s] of these states indicates that a warning requirement is practical"); E. Smary, note, "The Doctrine of Waiver and Consent Searches," 49 Notre Dame L.Rev. 891, 903 (1974) (criticizing as "straw-man logic" court's assertion in Schneckloth that it would be thoroughly impractical for police officer to engage in detailed examination needed to ensure valid waiver); cf. J. Adams, "Search and Seizure as Seen By Supreme Court Justices: Are They Serious or Is This Just Judicial Humor?," 12 St. Louis U. Pub.L.Rev. 413, 446-47 (1993) (criticizing court's consideration in Schneckloth of practical considerations of police in assessing whether advisement of right to withhold consent should be required).
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.
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.
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.2d 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,
For example, in State v. Johnson, 68 N.J. 349, 353-54, 346 A.2d 66 (1975), the New Jersey Supreme Court rejected Schneckloth in construing the New Jersey constitution
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., at 359, 346 A.2d 66 (Pashman, J., dissenting). Recognizing that a person confronted with a request by the police for consent to search is likely to feel an element of compulsion due to the nature of the encounter, Justice Pashman concluded that the state should be obligated to establish that that person was aware of his right to withhold consent and that the police would respect his decision to withhold consent if he chose to do so. Id., at 366, 346 A.2d 66 (Pashman, J., dissenting). Justice Pashman explained: "I find it inconceivable and incomprehensible to suppose that an individual can be said to have relinquished privileges as fundamental as those embodied in our constitutional guarantees against unreasonable searches and seizures unless it clearly and unmistakably appears that the subject of the
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., at 864. Although this standard is not crystal clear, most courts have interpreted it as requiring a knowledgeable waiver for all consent searches. See, e.g., Commonwealth v. Cleckley, supra, 558 Pa. at 526, 738 A.2d 427.
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 Wn.2d 103, 115, 118-19, 960 P.2d 927 (1998), and State v. Brown, supra, at 472-74, 903 A.2d 169, 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 [f]ourth [a]mendment is directed"; United States
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., at 644, 790 A.2d 903. 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. at 349, 346 A.2d 66, 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, at 645, 790 A.2d 903. 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."
Although other courts have not expressly adopted the rule articulated in Carty, they nevertheless have identified the coercive effects of a request for consent to search following a routine traffic stop. For example, in Brown v. State, supra, 182 P.3d at 624, the Alaska Court of Appeals observed that "motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officer's request for a search. Because of the psychological pressures
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. at 517, 738 A.2d 427, 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., at 527, 738 A.2d 427. 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., at 526-27, 738 A.2d 427; concluded that "the federal voluntariness standard as enunciated in Schneckloth adequately protects the privacy rights obtained under [a]rticle I, [§] 8 of [the Pennsylvania] constitution." Id., at 527, 738 A.2d 427.
In his dissent, Justice Russell 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., at 528, 738 A.2d 427 (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., at 530, 738 A.2d 427 (Nigro, J., dissenting). Relying on both State v. Johnson, supra, 68 N.J. at 349, 346 A.2d 66, and Justice Marshall's dissent in Schneckloth, Justice Nigro concluded that, "[i]f a person believes [that] he has no choice but to consent upon an officer's request, then that person's consent cannot be said to have been given voluntarily, much less knowingly and intelligently. The safeguard advocated by [the] [a]ppellant—a simple statement by the police that the subject of the search has the lawful right to withhold consent to search—would serve to protect not only those who are unaware of their rights, but also those who, although perhaps aware of their rights, become too intimidated to refuse
Likewise, in State v. Flores, supra, 280 Or. at 273, 570 P.2d 965, the Supreme Court of Oregon concluded that the Oregon constitution provides no greater protection than the federal constitution for purposes of consent searches.
In his dissent, Justice Hans A. Linde noted the then existing criticism of Schneckloth and explained that the reasoning of Schneckloth was "rejected... by the experts who prepared 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 in any substantive analysis of the rationale underlying the court's holding in Schneckloth. Moreover, they simply do not address the pervasive criticism that has been directed at Schneckloth.
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 to search following a routine traffic stop. Public trust in the police is likely to be enhanced if they are required to provide motorists with such an advisement, and the empirical evidence indicates that the vast majority of motorists who are warned of their right to withhold consent will continue to grant consent despite the warning. Indeed, it is especially important that a motorist be advised of his or her right to refuse consent when, as in the present case, the police officer lacks even a reasonable and articulable suspicion that the vehicle contains contraband; in such circumstances, a request for consent is no more than a fishing expedition pursuant to which the police are able to take advantage of the coercive nature of the encounter and, in many cases, the subject's lack of knowledge that he or she has the legal right to withhold consent without any resultant adverse consequences.
Upon review of the Geisler factors, I conclude that article first, § 7, of the Connecticut
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
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.
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 406, 415 (S.D. 2004) ("[a]n officer does not impermissibly expand the scope of a traffic stop merely by asking the driver questions, even if the subject of the questioning is unrelated to the original purpose of the stop, as long as the questioning does not unduly extend the duration of the initial, valid seizure"); State v. Gaulrapp, 207 Wis.2d 600, 609, 558 N.W.2d 696 (App.1996) (police officer did not impermissibly lengthen duration of traffic stop by asking one question about presence of drugs or weapons and then requesting consent to search); accord Kothe v. State, 152 S.W.3d 54, 65-66 (Tex.Crim.App. 2004) (noting that fourth amendment does not prescribe "particular order" for conducting traffic stop and it was not unreasonable for officer to wait for results of warrant check, despite fact that he had dispelled original basis for stop by determining that defendant was not intoxicated).
Particularly in light of Arizona v. Johnson, supra, 129 S.Ct. at 787-88, 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 Muehler. See People v. Harris, supra, 228 Ill.2d at 240, 319 Ill.Dec. 823, 886 N.E.2d 947; 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 at 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, at 244, 319 Ill.Dec. 823, 886 N.E.2d 947 (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 at 807-808 (explaining, in contradiction to State v. Smith, supra, 286 Kan. at 419, 184 P.3d 890, 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").
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 at 508; emphasized that "there is ... no constitutional stopwatch on traffic stops"; id., at 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").
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 at 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 at 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 at 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).
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 drugsniffing dog, after the motorist had refused to give officers consent to search his car. Id., at 405, 415-16, 954 A.2d 1290; see also id., at 415 n. 6, 954 A.2d 1290 (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. at 409-10, 125 S.Ct. 834, under state constitution because, unlike in Caballes, arrival of drug-sniffing dog in Cunningham measurably prolonged duration of stop).
Finally, the defendant relies on State v. Glossbrener, 146 Wn.2d 670, 49 P.3d 128 (2002), in support of the proposition that Washington has a state constitutional rule restricting the scope and duration of routine traffic stops to the initial purpose of the stop, in the absence of an independent basis of reasonable suspicion to justify further investigation. The defendant's reliance on Glossbrener is, however, misplaced; Washington does in fact have such a rule, but it is statutory, and not constitutional. Id., at 676-77, 49 P.3d 128; see Wash. Rev.Code Ann. § 46.61.021(2) (West 2005) ("[w]henever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction"). Second, Glossbrener was not a consent search case but, rather, implicated the limitations of a safety-based protective frisk of a stopped motor vehicle's passenger compartment. State v. Glossbrener, supra, at 679-81, 49 P.3d 128.
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. at 632, 790 A.2d 903, 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., at 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. at 243, 93 S.Ct. 2041; 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, 790 A.2d 903, 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 motorists of their right to decline to consent to a search. See State v. Cox, supra, at 181-84; see also State v. Brown, 294 S.W.3d 553, 562 (Tenn.2009) (concluding that "[the] time, manner, and scope of [the trooper's] investigation did not exceed the proper parameters of a traffic stop" when request for consent to search was made "less than ten minutes" from start of stop and occurred while waiting for license and vehicular information).
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 at 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 him about the presence of weapons "`or other illegal items'" in his vehicle, and then "[asking] for consent to search," since that questioning "did not appreciably lengthen the duration of the stop." The court rejected the defendant's reliance on the bright-line rule, noting that it pertained only to voluntariness and that "the validity of [the] [d]efendant's consent to search is not at issue in this case." Id., at 891. Second, in United States v. Yeomans, 211 Fed.Appx. 753, 758 (10th Cir.) (unpublished opinion), cert. denied, 550 U.S. 948, 127 S.Ct. 2282, 167 L.Ed.2d 1115 (2007), the Tenth Circuit noted that the failure to return the driver's documents meant only that the officer's interaction with the driver and the defendant, his passenger, "never became consensual" and "when the questioning about drugs occurred, and [the defendant and the driver] consented to a search of their car, the traffic stop continued to be a detention, not a consensual encounter." The court then concluded that the District Court had properly denied the defendant's motion to suppress, because it determined that "questioning about drugs did not unreasonably extend the detention, and therefore did not violate the [f]ourth [a]mendment." Id., at 759. Finally, in United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308 n. 6 (10th Cir.2006), which appears to be sui generis because of its facts, the court emphasized that Mena did not apply because the trooper already had ended the traffic stop by returning the driver's documents and speeding warning to him while they sat in the cruiser away from the defendant, a passenger in the stopped car. The court then concluded that, because the defendant was not aware that the stop was over since those events had taken place out of his presence, he would not have felt free to leave, thus rendering his consent involuntary. Id., at 1309-10.
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, 129 S.Ct. at 787, tends toward applying a purely 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 WL 338087, *3-4, 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 WL 2245013, *5, 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 WL 4730571, *4-5, 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.
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. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128 (1999), the North Carolina Supreme Court held: "As we have stated previously, [a]rticle I, [§] 20 of our North Carolina [c]onstitution, like the [f]ourth [a]mendment [to the federal constitution], protects against unreasonable searches and seizures.... In order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot." (Citation omitted.) Although McClendon involved a dog sniff, I nonetheless find it persuasive as a general statement of the court's approach to the scope of a routine traffic stop.
In State v. Cunningham, 183 Vt. 401, 409-10, 954 A.2d 1290 (2008), the Vermont Supreme Court held that, "[u]nder both the [f]ourth [a]mendment and [a]rticle 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., at 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.
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.
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 WL 986688, *4, 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 WL 668947, *2-3, 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.
Although I find the reasoning of these courts and their concerns with police overreaching to be persuasive, I believe that they do not go far enough in protecting the rights of drivers under article first, § 7, of the Connecticut constitution, because an unsubstantiated, suspicionless consent search exceeds the permissible scope of a routine traffic stop and violates a driver's privacy whether it is conducted within the first thirty seconds or the last thirty seconds of that encounter. Moreover, this approach vests police with the power to determine, by either prolonging or expediting the requirements of the routine traffic stop, when additional justification is needed. Therefore, I adopt the reasoning articulated by the New Jersey Supreme Court: "A suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop." State v. Carty, supra, 170 N.J. at 647, 790 A.2d 903.
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., at 282, 93 S.Ct. 2041 (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., at 282-83, 93 S.Ct. 2041 (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., at 283, 93 S.Ct. 2041 (Marshall, J., dissenting).
"(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 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. at 281-82, 570 P.2d 965. The court, however, did not analyze the reasoning of either Schneckloth or Watson.
"`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 at 119-20 n. 3, 349 N.W.2d 453 (Abrahamson, J., dissenting).
"Schneckloth remains the majority 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., at 183-84; see also Henry v. State, supra, 621 P.2d at 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").
