State v. Tully

348 A.2d 603, 166 Conn. 126, 1974 Conn. LEXIS 875
Supreme Court of Connecticut·Decided March 5, 1974·Published·Cited by 48 cases

Opinions

House, C. J.

On a jury trial, the defendant was found guilty of the illegal possession of drugs in violation of §§ 19-480 (b) and 19-481 (a) of the General Statutes. The sole issue presented on his appeal to this court is whether the removal of heroin and marihuana from the automobile which the defendant was driving and the subsequent [128] admission of them into evidence were in violation of the fourth amendment of the constitution of the United States.

The facts are not disputed. On September 29, 1970, at approximately 11:50 p.m., Officer Bruce Scott, while on routine patrol as an officer of the Wilton police department, observed an automobile operated by the defendant. Scott became suspicious because of the slow speed of the automobile, for there had been several acts of vandalism in the area. Furthermore, the automobile appeared to cross the yellow line dividing the lanes. Scott stopped the vehicle in the driveway leading to the Miller School parking lot and, upon Scott’s request, the defendant handed Scott a Connecticut registration for the vehicle and a California driver’s license. A check with police headquarters revealed that the defendant’s Connecticut driver’s license was under suspension. Scott advised the defendant that he was going to issue him a summons and that the defendant would not be permitted to operate the automobile any further. Thereupon the defendant parked the automobile in the empty school parking lot and Scott transported him in the patrol car to the Wilton police headquarters, where the defendant was issued a summons for driving while his license was under suspension. Since the defendant was unable to obtain anyone to remove the vehicle from the school parking lot, it was decided to leave it there until morning, at which time the defendant would be able to obtain its removal. At the defendant’s request, Scott drove him to a friend’s house in Wilton. Scott then returned to the Miller School where he conducted a routine check of the doors to the building. Thereafter he stopped at the automobile parked by the defendant in the school yard [129] and noticed that the vent window on the driver’s side of the automobile was missing. Looking into the car, Scott observed a guitar handle protruding from beneath a blanket on the rear seat. He entered the unlocked vehicle to remove the guitar and take it to headquarters for the night for safekeeping because of the recent vandalism in the area. While reaching for the guitar, Scott saw on the rear floor of the vehicle a brown shopping bag which was open at the top. Looking into the bag, Scott observed several plastic baggies containing ,a substance which appeared to be marihuana. Adjacent to the bag was a knapsack which Scott opened and found to contain, beneath some articles of clothing, a brick wrapped in yellow paper with green leaves protruding, eight glassine bags of a white substance, and three cubes, individually wrapped in foil, containing a brown substance. These packages later were determined to contain marihuana and heroin. At a hearing on the defendant’s motion to suppress as evidence the items removed from the bag and the knapsack, the trial court found that the items were not in plain view from the exterior of the automobile and that they were discovered by Scott only when he entered the automobile for the sole purpose of safeguarding the guitar from vandalism.

The court found that Officer Scott did not enter the defendant’s vehicle pursuant to a search warrant or with the consent of the defendant or because he had probable cause to believe that the automobile contained contraband or to make an inventory pursuant to the impounding of the motor vehicle, but expressly found that he made the entry “with the purpose of removing a guitar from the motor vehicle for safe-keeping.”

[130] The defendant fully protected his claims for the exclusion of the evidence by proper objections and exceptions to the rulings of the court denying his motion to suppress and admitting the evidence for the consideration of the jury and by assignments of error addressed to these rulings.

The fourth amendment to the constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable 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.” These federal constitutional provisions are applicable to the states through operation of the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, rehearing denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72. State searches and seizures are to be judged by the same constitutional standards as exist in the federal system. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726.

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State v. Tully, 348 A.2d 603, 166 Conn. 126, 1974 Conn. LEXIS 875 (Colo. 1974).

348 A.2d 603 (State v. Tully) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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