Petition for Writ of Certiorari — Connecticut v. Badgett
Supreme Court brief1986
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8 @ a 3 ~ 4A | wy Court “
SEP 5 1986
In The oe
JOSEPH F. SPANIOL, JR.
T
Supreme Court Of The Gnited States
OCTOBER TERM, 1986
STATE OF CONNECTICUT,
Petitioner,
V.
EARL BADGETT,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CONNECTICUT
JOHN J. KELLY
Chief State’s Attorney
JOHN M. MASSAMENO
Assistant State’s Attorney
Senior Appellate Attorney
Counsel of Record
Division of Criminal Justice
Office of the Chief State’s Attorney
340 Quinnipiac Street
Wallingford, Connecticut 06492
(203) 265-2373
r : } \
/ ) \ :
"Bh Yeros
QUESTIONS PRESENTED
1. Whether a brief, on-site search of an automobile that has
been taken into police custody after the arrest of its driver is
unreasonable under the Fourth Amendment because it is not
undertaken both pursuant to an on-site inventory policy and by
officers intending to implement such a policy.
2. Whether the search of an automobile incident to the
arrest of its driver, which is begun while the driver is at the
scene of the arrest, is rendered unreasonable under the Fourth
Amendment when, during the search, the driver is removed
from the scene.
TABLE OF CONTENTS
Page
Questions Presented idee i
Table of Authorities : “ iil
Opinion Below | inka neem eee
Jurisdiction mae eee BO ae 5
Constitutional Provision Involved 2
Statement | | anes: janie
Reasons For Granting The Writ 3 6
Conclusion 14
ET EEEOTTERTET OTT Torrey Ge la
—
TABLE OF AUTHORITIES
Cases: Page
Bell v. W olfish, 441 U.S. 520 (1979) 9
Brown v. Illinois, 442 U.S. 590 (1975) ; ie 10
Cady v. Dombrowski, 413 U.S. 433 (1973) 8
Chimel v. California, 395 U.S. 752 (1969) nore
Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975) 6
Illinois v. LaFayette, 462 U.S. 640 (1983) | .... 89
Matter of One 1969 Chev. 2-door, etc., 121 Ariz. 532,
591 P.2d 1309 (Ct. of Ap., Div. 1, Dep't B 1979) 11
Mayhoed v. State, 669 S.W.2d 873
(Tex. App., 13 Dist. 1984) : 11
Michigan v. Tyler, 436 U.S. 499 (1977) | | 9
Moran v. Burbine, —U.S.—, 106 S. Ct. 1135 (1986) 9
New York v. Belton, 453 U.S. 545 (1981) .. 11,13
New York v. Quarles, 467 U.S. 649 (1984) ee
Nix v. Williams, 467 U.S. 431 (1984) <r
Preston v. United States, 376 U.S. 364 (1964) a2
Scott v. United States, 436 U.S. 128 (1978) 9.0.00... 7,10
Shipley v. California, 395 U.S. 818 (1969) 00.000... 12
South Dakota v. Opperman, 428 U.S. 364 (1976) ........... 6,9
State v. Blair, 691 S.W.2d 259 (Mo. 1985),
cert. granted, 54 US.L.W. 3460 (USS. Jan. 13, 1986)
ty. laccatnsseuvernnsionvassececsons 10
ill
Cases—Continued Page
State v. Hudson, 390 F.2d 509 (1st Cir. 1979) .............. 11
State v. Walker, 579 P.2d 1091 (Ariz. 1978) (en banc)... 11
Stoner v. California, 376 U.S. 483 (1964) se otkecicucett ae
United States v. Hall, 565 F.2d 917 (Sth Cir. 1978) hase
United States v. Hellman, 556 F.2d 442
(Dt CHE ADIT) oonvosccccccccsececscsstsvcvsvscievccssernecssvoernecs M0512
United States v. Leon, 468 U.S. 879 (1984) OR,
United States v. Prescott, 599 F.2d 103 (Sth Cir. 1979) .. 11
United States v. Jackson, 529 F. Supp. 1947,
(D. Md. 1981) ......... FPN cae INE ORES ea EEE ESE POR 11
United States v. Robinson, 414 US. 218 (1973) 0 ..0000...... 7
Statutes:
Conn. Gen. Stat. § 19-443 (20) (1981 Rev.) 0.0.00... 3
Conn. Gen. Stat. § 19480(a) (Rev. to 1981) ................. 2,5
Conn. Gen. Stat. § 19-480(c) (1981 Rev.) 00... 3
Conn. Gen. Stat. § 54-94a (1985) 0 occoceceecocecccccccee, 5
Miscellaneous:
1 W. LaFave, Search and Seizure, A Treatise on the
Fourth Amendment (1978 & 1986 Supp.) 7
1 W. Ringel, Searches and Seizures, Arrests and
Confessions (1985) oo.........ccccceees. Ceo ee cule ee es 13
R. Stern, E. Gressman & S. Shapiro,
Supreme Court Practice (6th Ed. 1986) 0.0.00... 6
iv
In The
Supreme Court Of The Anited States
OCTOBER TERM, 1986
No.
STATE OF CONNECTICUT,
Petitioner,
v.
‘ _ BARL BADGETT,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CONNECTICUT
The State of Connecticut petitions for a writ of certiorari to
review the judgment of the Connecticut Supreme Court in this
case.
OPINION BELOW
The opinion of the Connecticut Supreme Court (App. at la-
29a) is reported at 200 Conn. 412, —A.2d— (1986).
JURISDICTION
The judgment of the Connecticut Supreme Court was rendered
on July 8, 1986. The jurisdiction of this Court is invoked under
28 U.S.C. 1257(3).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States Constitution
provides:
The Right of the people to be secure in their
persons, houses, papers, and effects, against un-
reasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched,
and the persons or things to be seized.
STATEMENT
The respondent was convicted in Connecticut Superior Court
of illegal possession and transportation of heroin with intent to
sell, in violation of Conn. Gen. Stat. § 19-480(a) (Rev. to 1981),
after the trial court accepted his plea of nolo contendere, con-
ditional upon appellate review of his motion to suppress certain
evidence. He was sentenced to fifteen years imprisonment. R. at
3.' On appeal, the Connecticut Supreme Court concluded that
the trial court erred in denying the respondent’s motion to suppress
on the grounds relied upon by the trial court. Nevertheless, it
remanded the case for further proceedings to determine whether
another basis for admission of the evidence existed. App. at 2a-
3a.
1. On March 14, 1982, Connecticut state trooper Peter Naples
stopped a blue Cadillac for speeding on an interstate highway in
Middletown, Connecticut. The respondent was driving. Naples,
who parked his cruiser behind the Cadillac, obtained from the
' Reference to the record of this case are as follows: “R. at
refers to the record before the Connecticut Supreme Court.
“Tr. at __” refers to the transcript of that portion of the suppression
hearing held on February 15, 1983.
2
\
respondent his license and then returned to his cruiser to prepare
a motor vehicle summons. As he did so he noticed the respondent
make “a lot of .. . unsual movements”; Tr. at 18; the respondent
“was leaning somewhat toward the middle of the seat and bending
down. He would come up and go down again, [which] just
didn’t seem proper to [Naples] based on other motor vehicle
stops [he] had made.” Ibid.; App. at 3a, 10a.
Because of his concern over this unusual conduct, the trooper
contacted state police headquarters to obtain more information
relating to the respondent’s license and registration. Tr. at 19;
App. at 10a. Naples was informed by the dispatcher that there
were outstanding arrest warrants for the defendant on felony
charges of possession of narcotics with intent to sell, possession
of narcotics, possession of controlled drugs, possession of drug
paraphernalia in a drug factory situation, and two counts of
possession of a sawed-off shotgun.* He also was told that the
respondent was not the registered owner of the Cadillac and that
he might have one or two sawed-off shotguns in his possession.
Tr. at 20-22, 36; App. at 10a-1 1a.
Trooper Naples, who was “very concerned for [his] safety’;
Tr. at 21; did nothing until another trooper, Karl Kiernan, arrived
as back up. Trooper Kiernan parked behind Naples’ cruiser and
then entered it on the passenger side, as the respondent, now still,
looked on through his rear-view mirror. Tr. at 23-23; App. at
lla.
The troopers discussed ways to remove the respondent from the
Cadillac. Tr. at 23. Because motorists on the interstate were
2 A “drug factory” was defined by statute to be “any place used for the
manufacturing, mixing, compounding, refining, processing, packaging,
distributing, storing, keeping, holding, administering or assembling illegal
substances contrary to the provision of this chapter, or any building, rooms
or location which contains equipment or paraphernalia used for this
purpose.” Conn. Gen. Stat. § 19-443(20) (1981 Rev.); see Conn. Gen.
Stat. § 19-480(c) (1981 Rev.).
slowing down to observe the activity and spectators had begun
to gather on a nearby overpass, the troopers decided against
ordering the respondent out of his vehicle by the use of a public
address system. Tr. at 23-25. Instead, Trooper Kiernan, armed
with a shotgun, draped himself over the trunk of the Cadillac
and tapped the barrel of the gun on the rear window as Trooper
Naples approached the driver's door with his weapon drawn.
Tr. at 25-26. Naples ordered the respondent to put his hands on
the steering wheel and then to exit the vehicle. Ibid. The res-
pondent, who was a large man, complied with the request without
resistance. He was patted down, handcuffed (hands in front
owing to his large size), advised of his rights and the charges
against him, and placed in the front passenger seat of Naples’
cruiser. The passenger seat belts were clasped into place around
him. App. at 11a.
Believing that there were narcotics or weapons in the Cadillac,
the troopers returned to it to conduct a search. Naples removed
a blue windbreaker from under the front seat, where the res-
pondent earlier appeared to be reaching; as he did so, a zippered
black bag, which he thought may have contained narcotics or a
handgun, fell out. Without opening the bag or telling Kiernan
of it, Naples placed it on the floor of the front seat area and
summoned a wrecker to tow the Cadillac to headquarters. Tr. at
32. He was then instructed by the dispatcher to drive toward
headquarters with the respondent and to meet another trooper,
who would assist in bringing the respondent to headquarters for
booking. Tr. at 33; App. at 11la-12a.
Trooper Kiernan, who had been searching the rear of the
vehicle, noticed the black bag and windbreaker on the floor of
the front seat area; he opened the bag and observed within
numerous small envelopes containing a white powdery substance
that was later determined to be heroin. App. at 12a.
At approximately the same time of this discovery, Naples de-
parted the scene with the respondent. Kiernan took possession
4
of the black bag and the Cadillac was shortly thereafter towed to
state police headquarters. App. at 12a.
2. Prior to his trial for illegal possession and transportation
of heroin with intent to sell; Conn. Gen. Stat. § 19-480(a) (Rev.
to 1981); the respondent moved to suppress the evidence seized
from the Cadillac. The trial court denied the motion, finding
the seizure to be justified on three alternative grounds: (1) the
vehicle search was incident to the respondent’s lawful arrest;
(2) the search was supported by probable cause to believe the
vehicle contained dangerous weapons and required no warrant
under the law applicable to auto searches; and (3) the search
was a proper inventory search of the contents of a lawfully im-
pounded vehicle. App. at 13a. The respondent pled nolo con-
tendere to the charges, reserving his right to appellate review of
the suppression ruling. See Conn. Gen. Stat. § 54-94a (1985).
3. On appeal, the Connecticut Supreme Court rejected all
three grounds for admitting the evidence. It concluded that (1)
the search could not have been incident to the respondent’s arrest
inasmuch as the evidence was seized as the respondent was being
taken from the scene of the arrest; App. at 17a; (2) there was
insufficient evidence to establish probable cause to believe the
respondent possessed wapons;* App. at 20a; and (3) that, be-
cause the officers did not search the vehicle pursuant to a formal
On-site inventory policy, the inventory exception to the warrant
requirement was not applicable.° App. at 21a.
3 The vehicle was searched at headquarters pursuant to a warrant, but
no additional evidence was discovered. App. at lia-12a.,
4 The petitioner does not seek review of the state supreme court’s de-
cision on the question of probable cause only because of the limited
national significance the resolution of such a question here presents.
5 The Court nevertheless remanded the case so that the trial court
could determine whether the evidence inevitably would have been dis-
5
REASONS FOR GRANTING THE WRIT
This petition presents two significant and recurring questions
relating to automobile searches that have yet to be answered by
this Court. The first concerns whether a search objectively reason-
able under the Fourth Amendment can be rendered unreasonable
because it is not conducted both pursuant to a formal police policy
and by officers who subjectively intend to implement such a policy.
The second asks the Court to clarify in the automobile context the
temporal and geographic scope of the “search incident to arrest”
exception to the warrant requirement. Because there is a conflict
among state and federal courts on the first issue and obvious con-
fusion on the second, and because resolution of both issues would
assist significantly state and federal law enforcement officers who
frequently are required to arrest motorists and take their vehicles
into custody, this Court should grant the petition and review the
decision below.
l. In South Dakota v. Opperman, 428 U.S. 364 (1976), this
Court concluded that a search to inventory the contents of an
automobile in police custody was reasonable under the Fourth
Amendment. It reached that conclusion after considering the
diminished expectation of privacy one has in the contents of an
automobile and the need to (1) protect the owner's property
while the vehicle is in police custody; (2) protect the police
against claims or disputes over lost or stolen property; and (3)
protect police and the public from potential danger. Id. at 369,
375 n.10.
covered by lawful means already initiated at the time of the illegal! police
conduct. App. at 20a-22a; see Nix v. Williams, 467 US. 431 (1984).
Because the federal questions presented by this petition have been
finally resolved and further proceedings on remand could preclude review
of those issues, this case is ripe for review by this Court. See Cox Broad-
casting Corporation v. Cohn, 420 US. 469, 482-83 (1975); R. Stern, E.
Gressman & S. Shapiro, Supreme Court Practice § 3.10 (6th Ed. 1986).
6
This Court pointed out, however, that the search in that case
was conducted pursuant to “standard procedures in the local police
department” and was not “a pretext concealing an investigatory
police motive.” Id. at 374-75, 375-76 (emphasis in original). The
Court viewed the presence of standard procedures authorizing
such searches as “a factor tending to insure that the intrusion would
be limited in scope to the extent necessary to carry out the [ police]
caretaking function.” Id. at 375.
The question here is whether the brief, on-site search of a
vehicle taken into police custody is rendered unreasonable simply
because it is not conducted both pursuant to an inventory policy
and by officers intending to implement such a policy.© The de-
cisions of this Court and sound principles of Fourth Amendment
jurisprudence suggest the answer.
a. In recent years this Court’s opinions have indicated that the
Fourth Amendment is not violated, nor a violation thereof miti-
gated, by the state of mind of police officers. In Scott v. United
States, 436 U.S. 128 (1978), which involved the federal wiretap
statute, the Court stated the controlling rule: “{T]he fact that the
officer does not have the state of mind which is hypothecated by
the reasons which provide the legal justification for the officer’s
action does not invalidate the action taken as long as the circum-
stances, viewed objectively, justify that action.” Id. at 138; see
also United States v. Robinson, 414 US. 218, 236 (1973)
(search incident to arrest justified regardless of fact that officer
had no subjective fear that suspect was armed); 1 W. LaFave,
Search and Seizure, A Treatise on the Fourth Amendment, § 3.2
(1978 & 1986 Supp.).
6 The search here was otherwise reasonable because it was limited in
scope and surely would have qualified as an “inventory search” had the
offiecers been acting in accordance with, and in order to implement a
formal on-site inventory policy.
The rule identified in Scott has since been applied to inventory
searches. In a case involving the inventory of items in the posses-
sion of a person taken into custody, the Court identified the security
risks presented when unknown items are brought into a holding
area and concluded: “It is immaterial whether the police actually
fear any particular package or container; the need to protect
azainst such risks arises independently of a particular officer’s
subjective concerns.” Illinois v. Lafayette, 462 U.S. 640, 646
(1983).’
The same may be said, of course, concerning on-site automobile
inventory searches. The authority of the police to take the vehicle
into custody arises regardless of the state of mind of the officer,
as does the need to protect the owner’s property, to guard against
false property claims by the owner, and to protect the police and
the public from potential danger. Neither the bailment relation-
ship between the arrestee and the police nor the caretaking func-
tion of the police is in any way affected by the state of mind of
the searching officers.®
b. Similarly, each of the factors justifying an inventory search
arises regardless of the existence of a formal on-site inventory
policy. Thus, while such a policy would help police officers to
fulfill their bailment and caretaking responsibilities, it would not
7In the Miranda context the Court has enunciated a “public safety”
exception to the requirement of Miranda warnings that would apply re-
gardless of the “subjective motivation of the arresting officer.” New York
v. Quarles, 467 U.S. 649, 656 (1984).
8 The community caretaking function that in part justifies an inventory
search is particularly compelling here, as it was in Cady v. Dombrowski,
413 US. 433 (1973), where the potential danger to the public that
weapons and drugs present is involved.
8
alter or diminish them.2 Nor does the existence of a departmental,
On-site inventory policy (or a police intent to effectuate one)
confer upon an arrestee any additional privacy protection. The
permissible scope of an inventory search would be no different
with or without such a policy.
Surely, it is neither desirable nor feasible for police departments
to reduce to rule and regulation every aspect of their community
caretaking function. More important, the constitution contains no
such command. See Illinois v. Lafayette, 462 U.S. at 647. And,
while an inventory policy may help to ensure that the search
undertaken would be “limited in scope to the extent necessary to
carry out the caretaking function”; South Dakota v. Opperman.
428 USS. at 375; it is neither essential to, nor sufficient alone to
establish a reasonable inventory search.
In other contexts the Court has considered warrantless adminis-
trative searches reasonable without the specific requirement that
they be conducted pursuant to formalized policies. See e.g., Bell
v. Wolfish, 441 US. 520, 558-60 (1979) (prison searches;
“{clourts must consider the scope of the particlar intrusion, the
manner in which it is conducted, the justification for initiating it,
and the place in which it is conducted”); Michigan v. Tyler, 436
U.S. 499, 509-10 (1977) (post fire, administrative search to
determine cause of fire judged by reasonableness standard). These
cases are an implicit recognition that the reasonableness of govern-
ment action that intrudes on a privacy interest does not depend
upon the existence of formalized policies but upon the facts and
circumstances surrounding the particular government action.
Thus, if upon the lawful seizure of a motor vehicle the police
may be responsible for its contents, and if the obligations of their
Even jurisdictions that strictly require evidence that an inventory
policy exists make an exception where, as here, there is reason to believe
a vehicle contains weapons or drugs. See United States v. Hellman, 556
F.2d 442, 444 n.4 and accompanying text (9th Cir. 1977).
9
|
office require them to protect against the chreat to health and
safety the contents of the »#!rle may pose, it is difficult to under-
stand how the justification for a search that is an objectively
reasonable response to these concerns can be made to depend upon
the existence of formalizd policies and their conscious implementa-
tion by the police.
c. Nor should the specter of pretextual police searches detain
the Court. The Constitution does not create a code of ethics for
police officers. See Moran v. Burbine, — US. —, 106 S. Ct.
1135, 1142 (1986). It is fair to say that each of the constitu-
tional powers of the police is subject to abuse through pretextual
use. But, as the rule of Scott acknowledges, while the Fourth
Amendment creates an objective zone of privacy into which the
government may not unjustifiably intrude, the intrusion occurs,
if at all, not by thought but by action. Scott v. United States, 436
U.S. 128, 136-38 (1978). Unlike the commission of a crime,
which ordinarily involves the coalescence of both an evil intent
and a prohibited act, the violation of the Fourth Amendment
requires only a prohibited act. The subjective intent of an officer
can neither form the basis of a Fourth Amendment violation nor
ameliorate one that has occurred.'©
'0To be sure, police motives can affect the remedy once a Fourth
Amendment violation has been found. See Scott v. United States, 436
US. at 139 n.13; Brown v. Illinois, 442 US. 590, 603-604 (1975)
(flagrancy of unlawful police action is factor in deciding whether sub-
sequently obtained evidence is tainted). But such an inquiry occurs not
to determine whether the Constitution has been violated but whether the
deterrent object of the Exclusionary Rule would be advanced by suppres-
sion. Even in this context, however, inquiry into the subjective motives
of police is limited. See United States v. Leon, 468 US. 897, 919-20 n.20,
922-23 n.23 (1983) (“we also eschew inquiries into the subjective
beliefs of law enforcement officers who seize evidence pursuant to a
subsequently invalidated warrant”; “our good-faith inquiry is confined
to [an] objectively ascertainable question . . .”).
10
In short, the Fourth Amendment does not protect against con-
stitutionally impure police motives.''
d. Nevertheless, attempts to reconcile this Fourth Amend-
ment principle with this Court’s references in Opperman to
standard inventory policies and pretextual searches has led to
contrary results in state and federal courts. Comzpare, e.g., United
States v. Hellman, 556 F.2d 442, 443-4 (9th Cir. 1977) (in
the absence of inventory policy and intent to effectuate it, search
unlawful), and State v. Hudson, 390 A.2d 509, 511 (Me. 1979)
(absence of inventory policy rendered search unlawful), with
United States v. Prescott, 599 F.2d 103, 105-106 (Sth Cir. 1979)
(existence of inventory policy and an intent to effectuate it not
necessary to valid inventory search); United States v. Hall 565
F.2d 917, 922 (Sth Cir. 1978) (failure to fill out inventory
form and officers’ desire to find illegal items does not vitiate other-
wise valid inventory search); State v. Walker, 579 P.2d 1091,
1098 (Ariz. 1978) (en banc) (inventory search will be found
to be proper not because “subjective motives of the police were
simplistically pure” but because search was “reasonable under
the circumstances”); Mayhood v. State, 669 S.W.2d 873, 874
(Tex. App., 13 Dist. 1984, pet. ref’d) (that police expected to
find contraband during inventory does not invalidate search) .'*
To the extent that the cases requiring both an inventory policy
and a police intent to effectuate it exceed constitutional commands,
\
'! This Court only recently granted a state petition for certiorari in a
case that raises the constitutional significance of a pretextual arrest and
search. State v. Blair, 691 S.W.2d 259 (Mo. 1985), cert. granted, 54
US.L.W. 3460 (US. Jan. 13, 1986) (No. 85-303).
'2 The State advances the rule adopted by the Arizona Court of Appeals;
Matter of One 1969 Chev. B-Door, Etc., 121 Ariz. 532, 591 P.2d 1309
(Ct. of Ap. Div. 1, Dep’t B 1979); for deciding whether an inventory
search is lawful: “(1) The law enforcement officials must have lawful
custody or possession of the automobile and (2) the objective facts in-
dicate that an inventory search was reasonable under the circumstances.”
Id, at 535.
11
the cost to society of this misapplication of the Fourth Amendment
is tremendous, for many courts have adopted that view. See United
States v. Jackson, 529 F. Supp. 1047, 1055 nn.11, 12 (D. Md.
1981).
Because the Fourth Amendment embodies an objective standard
of reasonableness that is unaffected by police motivation, or the
existence of police rules and regulations, and because the question
raised is of particular nation-wide significance, the petition should
be granted and the question presented reviewed.
2. In New York v. Belton, 453 U.S. 545 (1981), this Court
held that, “when a policeman has made a lawful custodial arrest
of the occupant of the automobile, he may, as a contemporaneous
incident of that arrest, search the passenger compartment of that
automobile.” Jd. at 460. The rule depends not upon whether at
the time of the search the passenger compartment was in fact
within the physical reach of the arrestee; rather, the rule is a
straight-forward standard based upon the generalization that the
passenger compartment of an automobile of which the arrestee
was a recent occupant is “ ‘the area into which an arrestee might
reach in order to grab a weapon or evidentiary ite[m].’” Id. at
460 (quoting Chimel v. California, 395 U.S. 752, 763 (1969) ).
Thus, in Belton the search was sustained notwithstanding that the
arrested occupants of the vehicle were at the time of the search
outside the vehicle and placed in “‘four separate areas of the
Thruway ... so they would not be in physical touching area
of each other.’” Id. at 456.
While Belton focused on the scope of an auto search incident
to the arrest of passengers who had been removed from the
vehicle, this case presents the question of when an auto search is
“contemporaneous” with an arrest, considering both geographic
and temporal factors. The state supreme court concluded that,
although the search was at its inception valid as a search incident
to the respondent’s arrest, it became invalid the moment the res-
pondent was, during the search, removed from the scene of the
arrest in a cruiser. App. at 16a-17a.
12
It is now clear that, to be incident to a lawful arrest a search
must be “substantially contemporaneous” with the arrest. See
Shipley v. California, 395 US. 818, 819 (1969); Stoner v.
California, 376 U.S. 483, 486 (1964). The State contends that
a search commenced while the suspect is at the scene of the arrest
is “substantially contemporaneous” with the arrest notwithstand-
ing that he is during the course of the search taken from the
scene.'? Any other rule would lead to uncertainty and confusion
at the roadside scene of the arrest and could exacerbate an already
volatile situation.
Any arrest presents the potential for violence; when it occurs
on the side of a public highway the danger posed by the arrest
extends not only to the police but to members of the public. It
would make little sense to fashion a “search incident to arrest”
rule that encourages police to keep a suspect unnecessarily at the
roadside scene of his arrest so that they may lawfully complete
a search of his automobile. Surely the danger posed by the
presence of the arrestee in close proximity to the vehicle he was
operating, which may be a repository of weapons, should not be
prolonged.
Nor, of course, should the rule authorizing the search of an
automobile incident to the arrest of the operator extend beyond
the circumstances that justify its existence. Yet, the need for a
“single familiar standard” to guide police in the frequent roadside
arrest setting, where there is little time for reflection, is much to
be preferred over a “highly sophisticated set of rules, qualified by
all sorts of ifs, ands and buts and requiring the drawing of subtle
nuances and hairline distinctions.’ New York v. Belton, 543
U.S. at 458. Thus, while it is wholly appropriate to say that no
search of an automobile can be incident to the arrest of its operator
when the operator is removed from the scene, it is both irrational
'3 The State agrees that an automobile search is not incident to an
arrest when it begins after the suspect has been removed from the scene.
See Preston v. United States, 376 US. 364, 368 (1964).
13
and confusing to say that a brief search of an automobile, lawful at
its inception, can become unlawful on the basis of a momentary
event outside the control of the officer conducting the search.'*
Because the Connecticut Supreme Court and other courts
throughout the country are in need of guidance in applying the
substantial contemporanety component of the “search incident”
doctrine in the context of automobile searches; see generally 1 W.
Ringel, Searches and Seizures, Arrests and Confessions, § 12.5
(1985); this Court should grant the petition and review the
question presented.
14 There was no claim or suggestion in this case that the search of the
respondent's automobile was unnecessarily prolonged or intrusive.
14
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted.
THE STATE OF CONNECTICUT
Petitioner
BY: JOHN M. MASSAMENO
Assistant State’s Attorney
Senior Appellate Attorney
Counsel of Record
Division of Criminal Justice
Office of the Chief State’s Attorney
340 Quinnipiac Street
Wallingford, Connecticut 06492
(203) 265-2373
With whom on the Brief:
JOHN J. KELLY
Chief State’s Attorney
JOHN T. REDWAY
State’s Attorney
JUDITH ROSSI
Deputy Assistant State’s Attorney
MARY K. MILLER
Legal Intern
September, 1986
15
No. _
In The
Supreme Court Of The Anited States
OCTOBER TERM, 1986
STATE OF CONNECTICUT,
Petitioner,
Vv.
EARL BADGETT,
Respondent.
APPENDIX
OF THE
PETITIONER
412 JULY, 1986 200 Conn 412
State v. Badgeti
STATE OF CONNECTICUT v. EARL BADGETT |
(12142)
PETERS, C. J., HEALEY, SHEA, SANTANIELLO and CALLAHAN, Js.
Convicted following a conditional plea of nolo contendere to a substitute |
information charging him with the crime of illegal possession and trans
portation of heroin with intent to sell, the defendant appealed to this
court. Held
1. The trial court did not err in accepting the defendant's plea of nolo con
tendere; the record of his plea canvass demonstrated that his plea was
knowingly, voluntarily and intelligently made.
(Two justices dissenting)
A warrantless search of the automobile which the defendant was driv
ing at the time of h’ arrest could not be constitutionally validated under
la
200 Conn 412 JULY, 1986 413
State v. Badgett
any of the exceptions to the warrant requirement; the case was, how-
ever, remanded to the trial court for a further determination of ‘vhether
the material seized during that search could be properly admitted under
the “inevitable discovery’”’ exception to the exclusionary rule.
“Inevitable discovery’’ exception, discussed.
Argued April 9—decision released July 8, 1986
Substitute information charging the defendant with
the crime of illegal possession and transportation of
heroin with intent to sell, brought to the Supe.ior Court
in the judicial district of Middlesex and presented to
the court, Spallone, J., on a plea of nolo contendere;
judgment of guilty, from which the defendant appealed
to this court. Remanded for further proceedings.
Martin Zeldis, assistant public defender, with whom,
on the brief, was Joette Katz, public defender, for the
appellant (defendant).
Judith Rossi, deputy assistant state’s attorney, with
whom, on the brief, were John T. Redway, state’s attor-
ney, and James G. Clark, deputy assistant state’s attor-
ney, for the appellee (state).
SHEA, J. The defendant, Earl Badgett, has appealed
from his conviction upon a conditional plea of nolo con-
tendere to a substitute information charging him with
illegal possession and transportation of heroin with
intent to sell in violation of General Statutes (Rev. to
1981) § 19-480 (a).! The defendant has raised two claims
1 Genera! Statutes (Rev. to 1981) § 19-480 (a) [presently § 21a-277 (a)] pro-
vides: ‘‘(a) Any person who manufactures, distributes, sells, prescribes, dis-
penses, compounds, transports with the intent to sell or dispense, possesses
with the intent to sell or dispense, offers, gives or administers to another
person any controlled substance which is a hallucinogenic substance, other
than marihuana, or a narcotic substance except as authorized in this chap-
ter, for a first offense, shall be imprisoned not more than fifteen years and
may be fined not more than three thous ind dollars or be both fined and
imprisoned and for each subsequent offense, shall be imprisoned not more
than thirty years and may be fined not more than five thousand dollars,
or be both fined and imprisoned.”
2a
414 JULY, 1986 200 Conn 412
State v. Badgett
of error: (1) that the trial court failed properly to ascer-
tain whether his nolo contendere plea was knowingly,
voluntarily and intelligently made and (2) that the trial
court erroneously denied his motion to suppress evi-
dence seized as a result of the warrantless search of
the automobile that he was driving at the time of his
arrest.? We find no error in the tria! court’s acceptance
of the defendant’s plea. Although we conclude that the
evidence was illegally seized from the automobile, we
remand the case to the trial court for further proceed-
ings to consider whether the evidence would have been
inevitably discovered legally.
The state recited the following factual basis for the
defendant’s plea at the time it was accepted by the trial
court: On March 14, 1982, the defendant, driving a blue
Cadillac Eldorado, was stopped for speeding while
traveling north on Interstate 91 in Middletown by state
trooper Peter Naples. After speaking with the defend-
ant and obtaining his operator’s license, Naples
returned to his police cruiser to prepare the speeding
ticket. He was then informed by the police dispatcher
that there were outstanding arrest warrants for the
defendant. The defendant was arrested pursuant to
2 On April 11, 1984, the defendant attacked the validity of his plea by
a habeas corpus petition alleging the ineffective assistance of counsel and
an improper canvass. On May 31, 1985, the trial court, Kline, J., granted
the petition on the ground of improper canvass only. The state, after receiv-
ing permission from the court, appealed the decision to the Appellate Court.
The state then filed a motion for rectification with the trial court pursuant
to Practice Book § 3082. Because of the pendency of this appeal, the trial
court, Kline, J. sua sponte, vacated its earlier order that the plea canvass
was improper. The defendant filed a motion to review with the Appeilate
Court. After the appeal was transferred to this court, we denied the motion
to review. The appeal was then withdrawn. Our resolution of the first issue
on appeal has no effect on the right of the defendant to pursue his unresolved
habeas claim because our review of the plea canvass is based solely en the
record before us. In the habeas proceeding the defendant is free to go beyond
the transcript of the plea proceeding to show that he did not understand-
ingly waive his right to a jury trial. State v. Martin, 197 Conn. 17, 25-26,
495 A.2d 1028 (1985).
3a
200 Conn 412 JULY, 1986 415
State v. Badgett
these warrants and was removed from his vehicle. A
search of the vehicle was then conducted which uncov-
ered a black bag containing a number of glassine enve-
lopes holding a white powdery substance.
After laboratory tests established that the white sub-
stance in the black bag was heroin, the defendant was
arrested on April 15, 1982, on charges of possession
of narcotics, in violation of General Statutes (Rev. to
1981) § 19-481 (a) and possession of narcotics with
intent to sell by a non-drug dependent person, in vio-
lation of General Statutes (Rev. to 1981) § 19-480a (a).
By a substitute information dated June 22, 1982, the
state abandoned the simple possession count and
charged the defendant only with possession with intent
to sell by a non-drug dependent person. The defend-
ant pleaded not guilty and elected a jury trial.
On April 25, 1982, the defendant filed a motion to
suppress the heroin seized during the warrantless
search of the vehicle he was driving. On February 17,
1983, after a full evidentiary hearing, the trial court
denied the defendant’s motion to suppress. On the same
date, a second substitute information was filed, charg-
ing the defendant with illegal possession of heroin with
intent to sell in violation of General Statutes (Rev. to
1981) § 19-480 (a), to which the defendant entered a
conditional plea of nolo contendere, specifically reserv-
ing the right to appeal the court’s denial of his motion
to suppress. General Statutes § 54-94a; State v.
Madera, 198 Conn. 92, 98-99, 503 A.2d 136 (1985). On
March 21, 1983, the trial court sentenced the defend-
ant to fifteen years imprisonment.
I
The defendant first claims that his plea of nolo
contendere was obtained in violation of due process
because the trial court failed to ascertain whether the
4a
416 JULY, 1986 200 Conn 412
State v. Badgett
plea was knowingly, voluntarily and intelligently made.°
Specifically, the defendant asserts that the plea can-
vass was inadequate because the trial court did not
advise him of his rights in accordance with the stric-
tures of Practice Book §§ 7114 and 7125 and also in
accordance with federal constitutional principles as
| enunciated in Boykin v. Alabama, 395 U.S. 238, 248,
89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Neither the
Practice Book violations nor the constitutional claims
were raised by the defendant by a motion to withdraw
his plea before sentence was imposed by the trial court.
3 Although General Statutes § 54-94a allows a defendant to plead nolo
contendere conditional on the right to appeal, the denial of either a motion
to suppress based on search and seizure grounds, or a motion to dismiss,
the defendant can properly attack the validity of his conditional plea on
appeal on the basis that it was not knowingly, voluntarily and intelligently
made. See State v. Madera, 198 Conn. 92, 107-108, 503 A.2d 136 (1985).
‘ “?Practice Book] Sec. 711. —- ——ADVICE TO DEFENDANT
“The judicial authority shall not accept the plea without first addressing
the defendant personally and determining that he fully understands:
“(1) The nature of the charge to which the plea is offered;
‘(2) The mandatory minimum sentence, if any;
“(3) The fact that the statute for the particular offense does not permit
the sentence to be suspended;
“(4) The maximum possible sentence on the charge, including, if there
are several charges, the maximum sentence possible from consecutive sen-
tences and including, when applicable, the fact that a different or additional
punishment may be authorized by reason of a previous conviction; and
‘“(5) The fact that he has the right to plead not guilty or to persist in
that plea if it has already been made, and the fact that he has the right
to be tried by a jury or a judge and that at that trial he has the right to
the assistance of counsel, the right to confront and cross-examine witnesses
against him, and the right not to be compelled to incriminate himself.”’
} § ‘(Practice Book] Sec. 712. —- ——-INSURING THAT THE PLEA IS
VOLUNTARY ‘
“The judicial authority shall not accept a plea of guilty or nolo conten-
dere without first determining, by addressing the defendant personally in
open court, that the plea is voluntary and is not the result of force or threats
or of promises apart from a plea agreement. The judicial authority shall
also inquire as to whether the defendant’s willingness to plead guilty or
nolo contendere results from prior discussions between the prosecuting
authority and the defendant or his counsel.
Sa
200 Conn 412 JULY, 1986 417
State ». Badgett
Practice Book § 720; State v. James, 197 Conn. 358,
360, 497 A.2d 402 (1985); State v. Martin, 197 Conn.
17, 495 A.2d 1028 (1985).
The acceptance of a-plea of nolo contendere is
governed by federal constitutional standards as well
as state rules of practice. ‘‘ ‘Several federal constitu-
tional rights are involved in a waiver that takes place
when a plea of guilty is entered in a state criminal trial.
First, is the privilege against compulsory self-incrim-
ination. . . [slecond, is the right to trial by jury
. . . [t]hird, is the right to confront one’s accusers.’
Boykin v. Alabama, [supra]. Further, under the Con-
necticut rules of practice, a trial judge must not accept
a plea of nolo contendere without first addressing the
defendant personally and determining that the plea is
voluntarily made under Practice Book § 712 and that
the defendant fully understands the items enumerated
in Practice Book § 711. State v. Godek, 182 Conn. 358,
357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031,
101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); State v. Bat-
tle, 170 Conn. 469, 473, 365 A.2d 1100 (1976); State
v. Bugbee, 161 Conn. 531, 533, 290 A.2d 332 (1971).”
State v. Martin, supra, 22-23.
Ordinarily, the defendant’s failure to raise a timely
claim of error before the trial court renders the claim
unreviewable on appeal. Practice Book §§ 854, 3063.
“Only in the most exceptional circumstances can and
will this court consider a claim, constitutional or other-
wise, that has not been raised and decided in the trial
court.”’ State v. Evans, 165 Conn. 61, 69, 327 A.2d 576
(1973). We have recognized, however, as an ‘‘excep-
tional cireumstance’”’ within this doctrine, certain claims
involving colorable deprivations of fundamental con-
stitutional rights. State v. Roma, 199 Conn. 110, 118,
505 A.2d 717 (1986); State v. Evans, supra, 70.
6a
418 JULY, 1986 200 Conn 412
State v. Badgett
To the extent that the defendant’s claim implicates
the failure of the trial court to apprise him of the con-
stitutionally mandated requirements for a valid plea,
as delineated in Boykin, his claim is properly reviewa-
ble despite the absence of a timely motion to withdraw
the plea. State v. Amarillo, 198 Conn. 285, 313 n.16,
503 A.2d 146 (1986). While the federal constitution
requires that the record of the plea canvass indicate
the voluntariness of any waiver of the three core con-
stitutional rights delineated in Boykin, it does not
require that the trial court go beyond these ‘“‘constitu-
tional minima.”’ United States v. Dayton, 604 F.2d 931,
935 n.2 (5th Cir. 1979) (en banc). A defendant can volun-
tarily and understandingly waive these rights without
literal compliance with the prophylactic safeguards of
Practice Book §§ 711 and 712. Therefore, although the
Practice Book provisions were designed to reflect the
principles embodied in Boykin; State v. Godek, 182
- Conn. 358, 357, 438 A.2d 114 (1980), cert. denied, 450
U.S. 1031, 101 8. Ct. 1741, 68 L. Ed. 2d 226 (1981);
Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108
(1977); precise compliance with the provisions is not
constitutionally required. Thus, our analysis will focus
on whether the federal constitutional principles of
Boykin were satisfied rather than on meticulous com-
pliance with the provisions of the Practice Book.
Under Boykin, in order for a plea to be knowingly,
voluntarily and intelligently made, a trial court is
required to advise a defendant that his plea operates
as a waiver of three fundamental constitutional rights—
jury trial, confrontation and self-incrimination. The
defendant in this case does not claim that the trial court
neglected to advise him concerning the right to con-
frontation, as the record expressly indicates that this
condition was satisfied.* The defendant’s principal con-
6 “The Court: Do you understand . . . that you are giving up your right
to confront the witnesses against you?
“The Defendant: Yes, sir.”
7a
200 Conn 412 JULY, 1986 419
State v. Badgett
stitutionai claim is that the court did not inform him
of his right to a trial by jury. During the plea canvass,
the trial court asked the defendant if he understood
that “you are giving up your right to trial at this
present time?” Although the defendant responded afiir-
matively to that inquiry, he claims that the trial court’s
failure to utilize the term ‘‘jury trial’’ prevented him
from making a knowing waiver of the right and, there-
fore, rendered his plea constitutionally defective. While
we do not condone the court’s failure expressly to refer-
ence the right to a “jury” trial, we conclude that the
inquiry was constitutionally sufficient under the circum-
stances of this case.
At the time of his initial plea of not guilty to both
the original and the first substituted informations, the
defendant must have been advised of his right to a trial
by either the court or a jury, because he elected a jury
trial. We cannot imagine that the slight differences
between the charges in the initial information and the
second substituted information could reasonably have
led the defendant to presume that his right to a jury
trial would be altered. We also find it of no moment
that the judge who presided at the time the original
not guilty plea was entered did not also accept the
defendant’s plea of nolo contendere or that the initial
plea was entered some ten months before the nolo con-
tendere plea. The defendant’s trial by jury was sched-
uled to begin at the time the defendant elected to
withdraw his earlier plea of not guilty. The defendant,
through counsel, informed the court that he desired to
‘withdraw the prior pleas and elections on the files as
they standand . . . [enter] a conditional plea of nolo
contendere.” The court’s response to this request, “‘the
prior pleas and elections are withdrawn and vacated,”’
clearly refers to the defendant’s withdrawal of his elec-
tion for a jury trial. Although Boykin requires that relin-
quishment of the right to a trial by jury must be evident
8a
Bilin
rab ia tal ina:
420 JULY, 1986 200 Conn 412
State v. Badgett
and cannot be presumed from a “‘silent’’ record, we con-
clude that the trial court’s express mention of waiver
of the right to trial, combined with the defendant’s
prior election for a jury trial, his experience with crimi-
nal proceedings and apparently adequate representa-
tion by counsel, satisfy the constitutional requirement.
The defendant’s secondary claim of a constitutional
violation, conceded at oral argument to be his weaker
claim, involves the trial court’s failure to advise him
of his right to be free of compulsory self-incrimination.
During the plea canvass the trial court asked the
defendant if he realized ‘‘that you are giving up your
right to silence at this point.’”’ The defendant responded
affirmatively. The trial court used the more common
vernacular, rather than the precise language of Boykin.
Literal compliance, however, is not constitutionally
required. See State v. Godek, supra, 353. This court,
indeed, has in the past referred to a defendant’s right
to be free of compulsory self-incrimination as the right
‘to remain silent.’’ State v. Deboben, 187 Conn. 469,
471-72, 446 A.2d 828 (1982). In fact, a defendant might
better understand his right against compulsory self-
incrimination by the use of the term “‘right to remain
silent.’’ See State v. Lopez, 197 Conn. 337, 348, 497
A.2d 390 (1985); State v. Suggs, supra. Although the
court did not specifically advise the defendant that he
had the right not to be compelled to incriminate him-
self, the substance of that right was sufficiently con-
veyed. United States v. Caston, 615 F. 2d 1111, 1115
(5th Cir. 1980).’
7 We also reject the defendant's contention that the trial court’s failure
to inform him of his right to continued assistance of counsel in the event
of a trial rendered his nolo contendere plea defective. See Practice Book
§ 711 (5). Although this right is not included within the requirements of
Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969), we evaluate the claim because it does involve the defendant’s know-
ing waiver of his sixth amendment right to counsel. Carnley v. Cochran,
369 U.S. 506, 513, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962). The defendant was
9a
200 Conn 412 JULY, 1986 421
State v. Badgett
II
The defendant also claims that the warrantless search
of the black bag and seizure of heroin violated his rights
under the fourth and fourteenth amendments to the
United States constitution. The trial court denied the
defendant’s motion to suppress based on three excep-
tions to the requirement that all searches executed by
police be conducted with a warrant. We conclude that
the warrantless search was unconstitutional.
Some additional facts are necessary to the disposi-
tion of this claim: After state trooper Naples stopped
the defendant for speeding and acquired his driver’s
license, he returned to his vehicle to prepare the ticket.
While in his cruiser, parked twenty-five feet behind the
defendant’s vehicle, Naples observed that the defend-
ant was moving around in the car, leaning towards the
middle of the front seat and bending down. Because
of these ‘‘unusual”’ movements, the trooper contacted
state police headquarters in order to receive informa-
tion relating to the defendant’s license and possible sus-
pension. He was informed by the dispatcher that there
were outstanding arrest warrants for the defendant for
various drug and weapons charges. He was also advised
represented by counsel throughout the pretrial proceedings, including the
hearing on the motion to suppress and the proceeding in which the defendant
withdrew his earlier plea and entered his nolo contendere plea. See State
v. Suggs, 194 Conn. 223, 226-27, 478 A.2d 1008 (1984). The trial court
inquired of the defendant whether he understood the nature and import
of the conditional nolo contendere plea. An examination of the record estab-
lishes that the decision to enter a conditional nolo contendere plea was a
tactical one and the product of discussion between the defendant and his
counsel. It would “‘defy reality to suppose that [the defendant] had any
doubts’’ about his continued right to assistance of counsel had he not elected
to enter the conditional plea. United States v. Saft, 558 F.2d 1073, 1080
(2d Cir. 1977); State v. Suggs, supra. Further, there is no indication that
counsel intended to abandon the defendant if he persisted in his not guilty
plea and went to trial. See United States v. Saft, supra.
10a
422 JULY, 1986 200 Conn 412
State v. Badgett
that the defendant was not the registered owner of the
Cadillac. An additional trooper was dispatched to the
scene by headquarters in order to assist Naples. Naples
was then advised that the warrants for the defendant’s
arrest were still active and that the defendant might
have in his possession one or two sawed-off shotguns.
After the backup officer, Karl Kiernan, arrived on the
scene, the troopers cautiously approached the defend-
ant’s vehicle and instructed him to exit the car. The
defendant complied with the request. The troopers
arrested the defendant and conducted a ‘‘pat-down’’
search of the defendant’s person but discovered noth-
ing. Because of his large size the troopers were una-
ble to handcuff the defendant behind his back, which
was the departmental policy, and, therefore, had to
handcuff him in front of his body. The defendant was
advised of his rights and the charges against him,
placed in the front passenger seat of Naples’ cruiser
and secured by the seat belt and shoulder harness.
The troopers then returned to the Cadillac in order
to search it for narcotics and weapons. Naples searched
the front seat of the vehicle from the driver’s door,
focusing on the area where the defendant had been
making the unusual movements. He observed a blue
windbreaker jacket partially hidden underneath the
seat. When he pulled it out, a black zippered bag fell
out of the windbreaker onto the floor of the car. The
bag was approximately ten inches long, two inches wide
and three to four inches high. Naples did not open the
bag but did feel the outside and suspected that it con-
tained narcotics or perhaps a handgun. He left the bag
on the front.seat of the defendant’s vehicle and discon-
tinued his search. He then returned to his vehicle and
summoned a police wrecker in order to tow the defend-
ant’s vehicle to state police headquarters. Without
informing his fellow officer, Kiernan, who was still
lla
200 Conn 412 JULY, 1986 423
State v. Badgett
searching the defendant’s vehicle, that he was leaving
the scene or that he had discovered the black bag,
Naples left the scene with the defendant.
At approximately the same time that Naples departed
from the scene with the defendant, trooper Kiernan,
who had been searching the rear of the automobile,
noticed the black bag in the front seat. Kiernan first felt
the bag in order to determine whether it contained a
weapon, and then opened it. Immediately after Kiernan
discovered the heroin in the bag he noticed that trooper
Naples and the defendant were “driving off.’”’ Kiernan
did not continue to search the vehicle. Shortly there-
after, the police wrecker arrived and brought the vehi-
cle to headquarters. Kiernan had removed the black
bag and its contents, and brought it with him to head-
quarters. Pursuant to a search warrant, the automo-
bile was searched at the police station. The search
revealed no weapons or narcotics.
The Fourth Amendment to the United States con-
stitution protects the “right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable search and seizures.”’ Ordinarily, police
may not conduct a search unless they first obtain a
search warrant from a neutral magistrate after estab-
lishing probable cause. “[A] search conducted without
a warrant issued upon probable cause is “per se unrea-
sonable . . . subject only to a few specifically estab-
lished and well-delineated exceptions.’ ’’ Schneckloth
v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36
L. Ed. 2d 854 (1973), quoting Katz v. United States,
389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967); Coolidge v. New Hampshire, 403 U.S. 443,
454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied,
404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971);
see Stoner v. California, 376 U.S. 483, 486, 84S. Ct.
889, 11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84
S. Ct. 1830, 12 L. Ed. 2d 303 (1964); State v. Zindros,
12a
424 JULY, 1986 200 Conn 412
State v. Badgett
189 Conn. 228, 237, 456 A.2d 288 (1983), cert. denied,
465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).
Three recognized exceptions to the warrant require-
ment, upon which the trial court relied, are (1) where
searches have been undertaken ‘‘incident to a lawful
custodial arrest’; New York v. Belton, 453 U.S. 454,
101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); United States
v. Robinson, 414 U.S. 218, 94S. Ct. 467, 38 L. Ed. 2d
427 (1973); Chimel v. California, 395 U.S. 752, 89 S.
Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Shaw, 186
Conn. 45, 48, 438 A.2d 872 (1982); (2) where there is
probable cause to believe that a motor vehicle contained
contraband or evidence pertaining to a crime; United
States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed.
2d. 572 (1982); Arkansas v. Sanders, 442 U.S. 758, 99
S. Ct. 2586, 61 L. Ed. 2d 235 (1979); Coolidge v. New
Hampshire, supra, 455; State v. Januszewski, 182
Conn. 142, 152-54, 438 A.2d 679 (1980), cert. denied,
453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1980);
and (3) where the search has been conducted in order
to “inventory” personal property lawfully taken into
police custody. Illinois v. Lafayette, 462 U.S. 640, 103
S. Ct. 2605, 77 L. Ed. 2d 65 (1983); Michigan v.
Thomas, 458 U.S. 259, 102 S. Ct. 3079, 73 L. Ed. 2d
750 (1982); South Dakota v. Opperman, 428 U.S. 364,
96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); State v.
Gasparro, 194 Conn. 96, 107, 480 A.2d 509 (1984), cert.
denied, USS. , 106 S. Ct. 90, 88 L. Ed. 2d 74
(1985). These exceptions “‘have been jealously and care-
fully drawn’”’; Jones v. United States, 357 U.S. 493, 499,
78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958); and the bur-
den is on the state to establish the exception. Coolidge
v. New Hampshire, supra, 455; State v. Zindros, supra,
237. We will separately address each of the exceptions
to determine their applicability to the instant case.
A
The principal basis on which the state supports the
warrantless search of the automobile is that the search
13a
200 Conn 412 JULY, 1986 425
State v. Badgett
was incident to the lawful custodial arrest of the defend-
ant. In Chimel v. California, supra, the United States
Supreme Court held that a lawful custodial arrest cre-
ates a situation which jusiifies the contemporaneous
search without a warrant of the person arrested and
of the immediately surrounding area, whether or not
there is probable cause to search. The court recognized
that searches incident to arrests have long been con-
sidered valid because of the need “‘to remove any weap-
ons that [the arrestee] might seek to use in order to
resist arrest or effect hisescape . . . .’’ and the need
to prevent the concealment or destruction of evidence.
Id., 763. In New York v. Belton, supra, 461, the court
applied this concept to an automobile search, holding
that a lawful custodial arrest justifies a contempora-
neous search of the entire passenger compartment of
an automobile, whether or not the arrestee actually had
control over the area.’ In order to establish a straight-
forward rule for searches involving automobiles, the
court applied Chimel in light of the generalization that
“articles inside the relatively narrow compass of the
passenger compartment of an automobile are in fact
generally, even if not inevitably, within ‘the area into
which an arrestee might reach in order to grab a
weapon or evidentiary ite[m].’ Chimel [v. California,
supra].”’ New York v. Belton, supra, 460.
In New York v. Belton, supra, an automobile was
stopped by a state policeman for traveling at an exces-
sive rate of speed. The officer examined the automo-
8 In New York v. Belton, 453 U.S. 454, 461-62, 101 S. Ct. 2860, 69 L.
Ed. 2d 768 (1981), the court further reasoned that police may examine the
contents of any containers found within the passenger compartment, ‘‘for
if the passenger compartment is within reach of the arrestee, so also will
containers in it be within his reach. Such a container may, of course, be
searched whether it is open or closed, since the justification for the search
is not that the arrestee has no privacy interest in the container, but that
the lawful custodial arrest justifies the infringement of any privacy inter-
est the arrestee may have.”
14a
426 JULY, 1986 200 Conn 412
State v. Badgett
bile registration and determined that none of the four
occupants of the vehicle was related to the owner. The
officer also smelled an odor of burnt marihuana and
noticed an envelope on the floor of the vehicle that con-
tained marihuana. He directed the men to get out of
the vehicle and placed them under arrest for the unlaw-
ful possession of marihuana. After conducting a “‘pat-
down”’ search of each of the men, he ordered them to
remain in four separate areas cf the highway so they
would not be able to reach each other. The officer then
searched the passenger compartment of the vehicle and
found a jacket belonging to Belton. The officer unzipped
one of its pockets and discovered cocaine. The Supreme
Court concluded that the search which yielded the
cocaine was proper as incident to the lawful arrest of
the defendant.
Here the defendant does not claim that his arrest was
invalid, as it was clearly made pursuant to outstand-
ing arrest warrants, but claims that the search of the
black bag was not incident to his arrest because he was
no longer at the scene of the arrest at the time the bag
was searched by officer Kiernan. We agree that the
search was not incidental to the arrest.
The Supreme Court’s decision in Belton articulated
the scope of a search of an automobile incident to a law-
ful custodial arrest of its occupants. The court fashioned
a rule, “easily applied, and predictably enforced”;
United States v. Robinson, supra, 235; in order to pro-
vide clear guidance to police officers ‘‘who have only
limited time and expertise to reflect on and balance
the social and individual interests involved in the spe-
cific circumstances they confront.” Id., 458, quoting
Dunaway v. New York, 442 U.S. 200, 218-14, 99 S.
Ct. 2248, 60 L. Ed. 2d 824 (1979). Belton established
this standard based upon a generalization that the
interior of a car is always within the immediate con-
trol of an arrestee who has recently been in the car.
200 Conn 412 JULY, 1986 427
State v. Badgett
The state contends, therefore, that because the deci-
sion in Belton was an attempt to eliminate on the scene
confusion of police officers with respect to the scope
of their right to search an automobile, we should refrain
from retrospectively evaluating the probability that the
defendant could reach into the passenger compartment
of the car. We agree with the state that the compet-
ing interests of law enforcement and personal privacy
are better served if precise rules of police conduct are
established which may be routinely followed in certain
situations. Therefore we ordinarily will refuse to evalu-
ate whether or not an individual arrested while in an
automobile actually had access to the passenger com-
partment at the time of the search. We note that the
search in Belton occurred after the four occupants of
the automobile had been removed from the car, pat-
ted down, placed under arrest and separated on the
highway so that none of them could have actually
reached the jackets in the back seat of the car. Other
courts have applied Belton in analogous situations
where the arrestee seemingly had no opportunity to
gain access to the passenger compartment of the auto-
mobile. United States v. Cotton, 751 F.2d 1146 (10th
Cir. 1985) (Beiton applicable even though defendant out-
side car and handcuffed); Traylor v. State, 458 A.2d
1170 (Del. 1983) (defendant in handcuffs); State v.
Valdes, 423 So. 2d 944 (Fla. App. 1982) (defendant
seated in police car); State v. Hopkins, 163 Ga. App.
141, 293 S. E.2d 529 (1982) (defendant seated in police
car); see 2 Lafave, Search and Seizure, Search Incident
to Arrest, 1986 Pocket Part § 7.1, p. 224 n. 46.12.
We refuse, however, to extend the “‘fiction’”’ that the
passenger compartment is always within reach of the
arrestee; New York v. Belton, supra, 467 (Brennan, J.,
dissenting); to circumstances, as here, where the defend-
ant is no longer at the scene of the arrest when the
warrantless search was undertaken. It is undisputed
l6éa
428 JULY, 1986 200 Conn 412
State v. Badgett
that in this case the defendant was strapped and hand-
cuffed in the police cruiser leaving the scene when the
heroin was discovered by officer Kiernan. Because
Belton does no more than apply Chimel v. California
to a ‘‘particular and problematic’’ context, and “‘in no
way alters the fundamental principles established in the
Chimel case . . .”’ Id., 460 n.3; we hold that the right
of a police officer to search the vehicle ceases the
instant the arrestee departs the scene because the
arrestee’s removal forecloses any possibility that he
could reach for an article within the vehicle. See United
States v. Chadwick, 433 U.S. 1, 16, 97 S. Ct. 2476, 53
L. Ed. 2d 538 (1977); Preston v. United States, 376
U.S. 364, 367, 84S. Ct. 881, 11 L. Ed. 2d 777 (1964).
Although Belton appears to have removed the neces-
sity for factual analysis in each case of the actual likeli-
hood that a person arrested may be able to obtain a
weapon or destroy evidence contained in the passenger
compartment of his vehicle, we construe it to allow a
warrantless search of a vehicle incident to a lawful cus-
todial arrest only while the arrestee remains at the
scene of the arrest at the time the search is conducted.
The warrantless search in this case was not constitu-
tionally valid as incident to the arrest of the defendant.
B
The second theory put forward by the state to jus-
tify the warrantless search of the automobile is that
the police may make a warrantless search of an auto-
mobile in transit whenever they have probable cause
to do so. The justification for this so-called “‘automo-
bile exception” is twofold: (1) the inherent mobility of
an automobile creates ‘‘exigent circumstances,” and
(2) the expectation of privacy with respect to one’s auto-
mobile is significantly less than that relating to one’s
home or office. California v. Carney, 471 U.S. =, 105
S. Ct. 2066, 85 L. Ed. 2d 406 (1985); South Dakota v.
Opperman, supra, 367; Chambers v. Maroney, 399 U.S.
17a
200 Conn 412 JULY, 1986 429
State v. Badgett
42, 90S. Ct. 1975, 26 L. Ed. 2d 419, reh. denied, 400
U.S. 856, 91 8. Ct. 23, 27 L. Ed. 2d 94 (1970); Carroll
v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69
L. Ed. 5438 (1925); State v. Kolinsky, 182 Conn. 533,
538, 438 A.2d 762 (1980), cert. denied, 451 U.S. 978,
101 S. Ct. 2054, 68 L. Ed. 2d 354 (1981). This excep-
tion to the warrant requirement demands that the offi-
cers have probable cause to believe that the vehicle
contains contraband. Carroll v. United States, supra,
153-54. The probable cause determination must be
based on objective facts that could have justified the
issuance of a warrant by a neutral magistrate at the
time the search was made. United States v. Ross, supra,
808.
This automobile exception to the warrant require-
ment applies only to searches of vehicles that are sup-
ported by probable cause. The absence of probable
cause, despite the exigency created by the ready mobil-
ity of automobiles and the lesser expectation of privacy
in them, will render any warrantless search unreason-
able. Chambers v. Maroney, supra, 51; State v. Federici,
179 Conn. 46, 58-54, 425 A.2d 916 (1979). ‘‘ ‘Proba-
ble cause to search exists if (1) there is probable cause
to believe that the particular items sought to be seized
are connected with criminal activity or will assist in a
particular apprehension or conviction . . . and (2)
there is probable cause to to believe that the items
sought to be seized will be found in the place to be
searched.’ (Emphasis in original; citations omitted.)
State v. DeChamplain, [179 Conn. 522, 528-29, 427
A.2d 1338 (1980)].” State v. Delmonaco, 194 Conn. 331,
337, 481 A.2d 40, cert. denied, US. , 105 S.
Ct. 511, 83 L. Ed. 2d 401 (1984).
The state claims that there was probable cause to
search the defendant’s vehicle for dangerous weapons.
We disagree. The factual information available to the
state at the time the officers conducted the search of
18a
430 JULY, 1986 200 Conn 412
State v. Badgett
the Cadillac was inadequate to establish probable cause
that weapons would be found in the vehicle. The offi-
cers were aware of the following facts prior to their
search of the automobile for evidence: the vehicle had
been stopped for speeding; there were outstanding
arrest warrants for weapons charges; the defendant
had been observed making ‘‘a lot of unusual move-
ments’ in the car; and they were informed by the police
dispatcher, the basis for his assertion being the reported
belief of the Bridgeport police department, that the
defendant might have shotguns in his car. Although
a police officer is certainly entitled to utilize his train-
ing and experience in ascertaining probable cause; see
Texas v. Brown, 460 U.S. 730, 748-44, 103 S. Ct. 1535,
75 L. Ed. 2d 502 (1984); we cannot conclude that these
factors alone are sufficient to ‘‘warrant a man of rea-
sonable caution in the belief’’ that weapons would be
found in the car. Carroll v. United States, supra, 162;
see State v. Schoenbneelt, 171 Conn. 119, 123, 368 A.2d
117 (1976).° Clearly, the defendant’s citation for speed-
ing has little bearing on the probable cause determi-
nation. The existence of arrest warrants, albeit on
weapons charges, does not indicate probable cause to
search for weapons because these warrants alone pro-
vide no reasonable basis for the officers to conclude that
weapons would be found in the vehicle. The suspicion
of the Bridgeport police that the defendant might have
weapons in the vehicle does not amount to probable
cause. Finally, the fact that the defendant was mak-
ing furtive movements could very well be explained by
his anxiety over being stopped and could not reason-
* The state also argued that officer Kiernan had probable cause to search
the black bag for handguns. The officers did not testify that the black bag
had any ‘‘distinctive character’ that raised any reasonable suspicion that
there were weapons within it. Texas v. Brown, 460 U.S. 730, 744, 103 S.
Ct. 1535, 75 L. Ed. 2d 502 (1984). In fact, trooper Kiernan testified that,
he ‘‘didn’t believe that” the bag contained a firearm.
19a
200 Conn 412 JULY, 1986 431
State v. Badgett
ably have allowea the officers to conclude that there
were weapons in the car. The officers did not have prob-
able cause to search the vehicle.
C
The state also contends that the warrantless search
and seizure of the contents of the black bag were con-
stitutionally permissible in order to inventory the con-
tents of the vehicle. We summarily reject this
contention. In South Dakota v. Opperman, supra, the
United States Supreme Court held that a warrant was
not necessary where the purpose of the search was to
inventory the contents of an impounded vehicle. When
“vehicles are impounded, local police departments gen-
erally follow a routine practice of securing and inven-
torying the automobile’s contents.” Id., 369. The court
concluded that “inventories pursuant to standard police
procedures are reasonable,” and that evidence obtained
as a result of a valid procedure is admissible against
the defendant if the inventory ‘‘process is aimed at
securing or protecting the car and its contents.” Id.,
373.
Although we have recognized the validity of depart-
mentally authorized inventory searches; State v.
Gasparro, supra, 108; the state, as is its burden, did
not offer evidence of any police department practice
for inventory searches to be conducted on the highway
by field officers. Further, it is clear that the officers’
purpose in searching the vehicle at the scene was to
investigate and not to inventory the contents. The fact
that no lists of property were made and that the offi-
cers discontinued their search immediately after dis-
covering the contraband indicates that the search was
not undertaken to inventory the contents of the vehi-
cle. See State v. Johnson, 183 Conn. 148, 438 A.2d 851
(1981); State v. Murphy, 6 Conn. App. 394, 401 n.8,
505 A.2d 1251 (1986). In fact, the officers did not tes-
, 20a
432 JULY, 1986 200 Conn 412
State v. Badgett
tify that the purpose of their search was to conduct an
inventory. The search cannot be constitutionally vali-
dated under the “‘inventory search”’ exception to the
warrant requirement.
Ill
Our conclusion that the warrantless search of the
vehicle did not fall within an established exception to
the warrant requirement does not require us to exclude
the evidence unlawfully seized from the vehicle the
defendant was driving. Under the exclusionary rule,
the illegally seized heroin would be inadmissible at trial
unless one of the exceptions to the rule applied. Wong
Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9
L. Ed. 2d 441 (1963). Although the argument was not
raised by the state on appeal,!° evidence illegally seized
can be properly admitted under the “‘inevitable discov-
10 The subject of the applicability of the ‘inevitable discovery”’ excep-
tion to the exclusionary rule, though briefed by neither party, was raised
at oral argument upon inquiry by the court referring specifically to Nix
v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Just
as this court may ‘‘in the interests of justice notice plain error not brought
to the attention of the trial court’’; Practice Book § 3063; this court may
also consider grounds for affirming a judgment that may have been over-
looked by counsel in an appeal to this court. ‘‘But where we do this it is
not because the [party] has a right to have the question determined, but
because, in the interest of the public welfare or of justice between individ-
uals, we are of the opinion that it ought to be done.”’ Rindge v. Holbrook,
111 Conn. 72, 75, 149 A. 231 (1930). “{T}his court is not limited in its dis-
position of a case to claims raised by the parties and has frequently acted
sua sponte upon grounds of which the parties were not previously apprised.”
Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983). Where
there is good reason, the court has ordered additional argument or brief-
ing upon issues first raised sua sponte during oral argument. See State v.
Curcio, 191 Conn. 27, 29, 463 A.2d 566 (1983); State v. Powell, 186 Conn.
547, 550, 442 A.2d 939, cert. denied, 459 U.S. 838, 103 S. Ct. 85, 44 L.
Ed. 2d 80 (1982). Since we have concluded, however, that there must be
further proceedings in the trial court to determine the applicability of the
inevitable discovery rule under the circumstances of this case, the defend-
ant will have a full opportunity to present in the trial court or in any subse-
quent appeal any claim, legal or factual, that the rule should not be followed
in this case.
2ia
200 Conn 412 JULY, 1986 433
State v. Badgett
ery’ exception to the exclusionary rule, recently
adopted by the United States Supreme Court in Nix
v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed.
2d 377 (1984); see United States v. Apker, 705 F.2d 293,
306-307 (8th Cir. 1983); United States v. Fisher, 700
F.2d 780 (2d Cir. 1983); United States v. Brookins, 614
F.2d 1037 (5th Cir. 1980); Wayne v. United States, 318
F.2d 205 (D.C. Cir.), cert. denied, 375 U.S. 860, 84 S.
Ct. 125, 11 L. Ed. 2d 86 (1968). “T]he ‘vast majority’
of all courts, both state and federal, recognize an
inevitable discovery exception to the Exclusionary
Rule.” Nix v. Williams, supra, 441.
Under the inevitable discovery rule, evidence illegally
secured in violation of the defendant’s constitutional
rights need not be suppressed if the state demonstrates
by a preponderance of the evidence that the evidence
would have been ultimately discovered by lawful means.
Niz v. Williams, supra, 444. To qualify for admissibil-
ity the state must demonstrate that the lawful means
which made discovery inevitable were possessed by the
police and were being actively pursued prior to the
occurrence of the constitutional violation. United States
v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985); United
States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1985).
In Nix v. Williams, supra, 443, the Supreme Court
observed that the operation of the exclusionary rule
in situations where the police would have inevitably dis-
covered the evidence by legal means already initiated
would put the state in a worse position than it would
have been in if no police misconduct had transpired.
“Fairness can be assured by placing the State and the
accused in the same positions they would have been in
had the impermissible conduct not taken place.” Id.,
447.
In light of Nix v. Williams, we remand the case
to the trial court to determine whether the inevitable
discovery doctrine is applicable under the circum-
22a
434 JULY, 1986 200 Conn 412
State v. Badgett
stances of this case. See New York v. Class, USS.
, 106 S. Ct. 960, 969 n., L. Ed. 2d (1986).
Of some significance in this regard was the testimony
of officer Naples that, without informing his fellow offi-
cer, he had summoned a police wrecker to the scene
in order to tow the defendant’s vehicle back to head-
quarters. Among the factors to be considered are:
(1) whether an inventory search would have been justi-
fied under the circumstances; (2) whether such a search
would have been conducted according to standard state
police operating procedures; and (3) whether a search
pursuant to these procedures would have uncovered the
heroin in the black bag. See South Dakota v. Opper-
man, supra; State v. Gasparro, supra.
We remand the case for further proceedings in
accordance with this opinion.
In this opinion SANTANIELLO and CALLAHAN, Js.,
concurred.
PETERS, C. J., with whom HEALEY, J., joins, dissent-
ing. With regret, I find myself in disagreement with
the court’s disposition of the issues raised by the
defendant’s conditional plea of nolo contendere.
Because I believe that the trial court’s canvass of the
defendant’s plea does not pass constitutional muster,
I respectfully dissent.
The focus of my dissent from the majority opinion
is a narrow one. We are all in agreement that, in this
direct appeal from his conviction in accordance with
his plea of nolo contendere, the defendant may chal-
lenge the constitutional implications of his plea can-
vass, even though he failed to raise such a claim of error
in the trial court. State v. Amarillo, 198 Conn. 285,
313 n.16, 503 A.2d 146 (1986); State v. Childree, 189
Conn. 114, 119, 454 A.2d 1274 (1983); State v. Godek,
182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied,
200 Conn 412 JULY, 1986 435
State v. Badgett
450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226
(1981); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576
(1973). We are equally in agreement that the constitu-
tional determinants of a valid plea of nolo contendere
require a showing, on the record, of a knowing and
intelligent waiver of the privilege against compulsory
self-incrimination, the right to a trial by jury, and the
right to confront one’s accusers. Boykin v. Alabama,
395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969); State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d
390 (1985); State v. Childree, supra, 119-20; Blue v.
Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).
Finally, we are all in agreement that the record ade-
quately demonstrates a waiver of the privilege against
self-incrimination and of the right of confrontation.
What divides us, therefore, is solely the question of
whether the record affirmatively discloses that the
defendant waived his right to a trial by jury. In my
view, there is no such showing, and the defendant’s plea
of nolo contendere accordingly should be set aside.
There is no dispute about what the record reveals
with respect to this question. On the day c* the can-
vass concerning the defendant’s conditional plea of nolo
contendere, the trial court asked the defendant, ‘‘You
are not admitting any participation in the crime?” to
which the defendant replied, ‘‘No, sir.’’ Thereafter the
court asked, ‘‘However you do realize that at this time
you are giving up your right to a trial at this present
time?” The defendant answered, ‘‘Yes, sir.’”’ The court
then inquired into the defendant’s waiver of his other
constitutional rights and assured itself that the defend-
ant’s plea was not the result of threats or promises.
This inquiry was followed by a recitation of the facts
of the offense and by advice to the defendant of the
maximum penalty that he might receive. There was no
further effort to explore the constitutional validity of
the defendant’s plea except that the court, at the end
24a
aaa
436 JULY, 1986 200 Conn 412
State v. Badgett
of the canvass, asked both counsel to indicate whether
they knew of any reason why the plea should not be
accepted, and they responded in the negative. This rec-
ord concededly contains not one word referring to the
waiver of a jury trial, nor is there any statement, on
the record, that the defendant had consulted with his
counsel about the constitutional implications of a plea
of nolo contendere.
The record as a whole contains the following addi-
tional information. The defendant, at the time of his
initial plea of not guilty, had elected a jury trial. No
jury was, however, empaneled to hear his case because
the defendant entered his conditional plea of nolo con-
tendere on a substitute information immediately upon
the conclusion of a pretrial evidentiary hearing on his
unsuccessful motion to suppress evidence found in his
car.
Contrary to the view of the majority, I do not believe
that this record demonstrates a knowing waiver of the
defendant’s constitutional right to a trial by jury. We
do not know what the defendant was advised, and by
whom, at the time of his original arraignment. More
important, whatever he was then advised would not
suffice to meet the constitutional requirement that the
record must demonstrate a knowing waiver of constitu-
tional rights at the time of a plea of guilty or nolo con-
tendere.
There can be no question that Boykin v. Alabama,
/ supra, and our case law require an affirmative showing
~ that a plea of guilty or of nolo contendere represents
: an intelligent and voluntary waiver of a defendant’s
constitutional rights. Because such a plea is the func-
tional equivalent of a conviction, because what is at
stake for a defendant is often a long term of imprison-
ment, our courts have been enjoined to act with the
utmost solicitude for the rights of the defendant in
25a
200 Conn 412 JULY, 1986 437
State v. Badgett
conducting a canvass to assure the defendant’s full
understanding of what his plea connotes and of its con-
sequences. Boykin v. Alabama, supra, 243-44; State
v. Childree, supra, 120. In imposing the obligation to
undertake such a canvass in open court, and to make
an affirmative record, this case law indisputably
demands a waiver of constitutional rights that is con-
temporaneous with the court’s acceptance of a plea.
The waiver must occur in the plea proceeding itself.
I do not understand the majority opinion to be in dis-
agreement with this principle.
In its application of Boykin principles to this case,
the majority opinion concludes that informing a defend-
ant of a right to a trial is the constitutional equivalent
of advice concerning his right to a jury trial. In order
to reach this conclusion, the opinion relies on two fac-
tors: (1) the defendant’s recollection that, ten months
earlier, a different judge had advised him of his right
to a jury trial on different charges and that he had then
exercised that right; and (2) defense counsel’s with-
drawal of the defendant’s earlier election of a jury trial
upon the defendant’s agreement to plead nolo conten-
dere to the lesser charges of which he now stands con-
victed. Neither singly nor jointly do these factors serve
to demonstrate the defendant’s knowing and intelligent
waiver of his right to a jury trial.
1 know of no Connecticut case, and the majority cites
none, in which pre-plea proceedings have been relied
upon to supply an affirmative record of constitutional
waiver at the time of a plea canvass for a plea of guilty
or of nolo contendere. Those of us who are attorneys
may reasonably be held to understand and to recall
earlier pleadings and their subsequent consequences.
We should not, however, engage in speculation about
what a lay defendant may or may not presume about
his constitutional rig its. For all we know, this defend-
ant may well have been in doubt about the availability
26a
438 JULY, 1986 200 Conn 412
State v. Badgett
of a jury trial for lesser charges, if indeed he remem-
bered his earlier election at all. It is precisely to avoid
such speculation about a defendant’s knowing and intel-
ligent decision to forego his constitutional rights that
we require waiver to be affirmatively manifested on
the record.
The action of defense counsel in withdrawing the
claim for a jury trial is similarly insufficient to estab-
lish the defendant’s own understanding of his constitu-
tional rights at the time of his plea. It is quite possible
that the withdrawal only confirmed the defendant’s
misimpression that a jury trial was no longer warranted
for the substituted charges to which he was now plead-
ing. In the absence of any showing on the record that
defense counsel explained the constitutional sig-
nificance of this withdrawal to the defendant, counsel’s
conduct does not demonstrate waiver by the defendant.
The process of plea bargaining has often been criti-
cized as undermining essential attributes of the criminal
justice system. In rejecting an attack on plea bargain-
ing as an allegedly improper infringement of a defend-
ant’s constitutional rights, we have concluded that a
plea bargain that results from an intelligent and volun-
tary plea of guilty is ‘‘both desirable and constitu-
tional.’’ State v. Lopez, supra, 350. See also Corbitt v.
New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L.
Ed. 2d 466 (1978); Bordenkircher v. Hayes, 434 U.S.
357, 361-62, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978);
Santobello v. New York, 404 U.S. 257, 260-61, 92 S.
Ct. 495, 30 L. Ed. 2d 427 (1971); Staton v. Warden,
175 Conn. 328, 331-33, 398 A.2d 1176 (1978); Wright,
“Plea Bargaining—A Necessary Tool,” 16 Conn. L.
Rev. 1015 (1984). In State v. Lopez, supra, 350-51, we
expressly held that plea bargaining is constitutional,
despite the constitutional guarantee of the right to
demand a trial by jury. We premised our decision, how-
ever, on arecord which affirmatively demonstrated a
27a
200 Conn 412 JULY, 1986 439
State v. Badgett
knowing and voluntary waiver of the right to a jury
trial at the time of the plea canvass. We determined
that “[p]rior to accepting the defendant’s plea, the court
specifically informed him that in pleading guilty he was
waiving his right toajury trial . . . . The defendant
indicated that he realized he was waiving his right to
be tried by offering to plead guilty, and nevertheless
proceeded to enter a guilty plea.” Id., 351. The record
in this case is a far cry from that which we found essen-
tial in Lopez.
We should not provide further ammunition to the
critics of plea bargaining by countenancing a plea can-
vass that relies on speculation and supposition to estab-
lish the needed record of punctilious compliance with
constitutional requirements. “[T]he constitutional
rights of a criminal defendant in taking either a guilty
or a nolo plea must be scrupulously protected.’’ State
v. Godek, supra, 360. In Godek, we adopted a standard
of substantial compliance for the adjudication of alleged
deviations from statutory or Practice Book rules for
the taking of a plea, but in announcing that standard
we expressly excluded from its ambit possible infringe-
ments of a defendant’s constitutionally protected
rights. Id. With respect to constitutional rights, we
have always, until today, followed the rule that a trial
judge should not accept a plea of guilty or of nolo con-
tendere unless the defendant is specifically informed
of each and every element of his Boykin v. Alabama
rights. State v. Lopez, supra, 342; State v. James, 197
Conn. 358, 362, 497 A.2d 402 (1985); State v. Bugbee,
161 Conn. 531, 536, 290 A.2d 332 (1971). See also
United States v. Journet, 544 F.2d 633, 636 (2d Cir.
1976); In re Tahl, 1 Cal.3d 122, 132, 81 Cal. Rptr. 577,
460 P.2d 449 (1969), cert. denied, 398 U.S. 911, 90S.
Ct. 1708, 26 L. Ed. 2d 72 (1970); Purvis v. Connell, 227
Ga. 764, 766-68, 182 S.E.2d 892 (1971); State v.
Abodeely, 179 N.W.2d 347, 352 (Iowa 1970), cert.
28a
basaidnads,
440 JULY, 1986 200 Conn 412
State v. Badgett
denied and appeal dismissed, 402 U.S. 936, 91 S. Ct.
1617, 29 L. Ed. 2d 104 (1971); People v. Jaworski, 387
Mich. 21, 30, 194 N.W.2d 868 (1972); Commonwealth
ex rel. West v. Rundle, 428 Pa. 102, 105-106, 237 A.2d
196 (1968); State v. Mackey, 553 S.W.2d 337, 340-42
(Tenn. 1977); III American Bar Association, Standards
for Criminal! Justice (1980), Standard 14-1.4; Spinella,
Connecticut Criminal Procedure (1985) pp.459-66, esp.
462-63. I cannot agree with the majority opinion’s deci-
sion to depart from this salutary rule.
Accordingly, I dissent.
29a
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