STATE CONSTITUTIONAL LAW—SEARCH AND
SEIZURE—DECLINING TO ADOPT AN AGENCY
ANALYSIS IN DETERMINING THE ADMISSIBILITY OF
EVIDENCE OBTAINED IN ANOTHER JURISDICTION
PROMOTES CIRCUMVENTION OF THE CONNECTICUT
CONSTITUTION.
STATE v. BOYD, 992 A.2D 1071 (CONN. 2010).
Dana Perkins*
I. INTRODUCTION
In State v. Boyd,1 the Supreme Court of Connecticut considered whether
the search and seizure clause of article I, section 7 of the Connecticut
Constitution2 or New York constitutional law3 governed the legality of the
*
J.D., Rutgers University School of Law–Camden, May 2012; B.A. Washington
University in St. Louis, 2009. This comment is dedicated to my parents, my sister, Jenny, and
of course Adam, for their endless encouragement and support.
1. 992 A.2d 1071 (Conn. 2010).
2. Article I, section 7 of the Connecticut Constitution states:
The people shall be secure in their persons, houses, papers and possessions from
unreasonable searches or seizures; and no warrant to search any place, or to seize any
person or things, shall issue without describing them as nearly as may be, nor without
probable cause supported by oath or affirmation.
CONN. CONST. art. I, § 7.
3. Article I, section 12 of the New York Constitution states:
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.
N.Y. CONST. art. I, § 12.
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seizure of the defendant’s cell phone. The Boyd court4 held that, because
Connecticut officers were not implicated in the search, the trial court
properly denied the defendant’s motion to suppress evidence under the
automobile exception to the New York constitutional requirement for a
warrant.5 The court, however, failed to consider the effect of an agency
relationship in determining which state law to apply.6 This comment will: (1)
explore the history of admitting evidence in a forum obtained in another
jurisdiction; (2) note that the court correctly followed the majority of courts
in applying an exclusionary rule analysis; (3) argue that, in declining to
address the issue of agency between officers of the forum and the search
jurisdiction, the court promotes police misconduct; and (4) suggest that the
court outline an agency analysis.
II. STATEMENT OF THE CASE
In January and February of 2002, the Mamaroneck, New York police
department was investigating the defendant for suspected drug sales.7
Subsequently, on February 8, 2002, a detective with the Mamaroneck police
department executed a search warrant on the defendant’s home.8 Since the
Mamaroneck police knew that the Norwalk, Connecticut police were
concurrently investigating the defendant in connection with a murder,9 the
Mamaroneck police invited detectives Weisgerber and Chrzanowski of the
Norwalk police department to accompany them during the search of the
defendant’s apartment.10 While the Mamaroneck police were searching the
4. Chief Justice Rogers delivered the unanimous opinion of the court. Boyd, 992 A.2d
at 1075.
5. Id. at 1087–90.
6. Id. at 1087–88.
7. Id. at 1076.
8. Id. The warrant and affidavit stated: “‘FOR THE PREMISES AND PERSONS OF:
SOLOMON BOYD, 627 MAMARONECK AVENUE, MAMARONECK, NEW YORK,
APARTMENT # 3 . . . AND FOR THE PERSON OF SOLOMON BOYD AND ANY
PERSON THEREIN.’” Id. at 1076–77.
9. Boyd, 992 A.2d at 1077. The court concluded that the jury could have reasonably
found the following facts: that the defendant believed the victim had stolen a gold bracelet
from the defendant’s apartment; that on January 16, 2002, the defendant informed his
girlfriend that he was taking the victim to Mount Vernon, New York to buy drugs; that the
defendant drove instead to Norwalk, Connecticut where he stopped the car and shot the victim
several times; and that although the victim was still alive when police arrived minutes later, he
was later pronounced dead at the hospital. Id. at 1076.
10. Id. at 1077. The court noted that the purpose of the presence of the Connecticut
police was to see if they could find any evidence relating to the murder in plain view. Id.
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AGENCY ANALYSIS AND ADMISSIBILITY OF EVIDENCE
1043
apartment, the Norwalk police remained in the kitchen.11 During the search,
the police found evidence of drug sales.12 Then, after Holland, a police
officer with the Mamaroneck police department, received a radio call that
other officers had stopped the defendant in his car nearby, he and Weisgerber
went to the location.13 Holland and Weisgerber both noticed a cell phone on
the passenger seat of the car,14 but the record is unclear as to who seized the
cell phone and when the seizure occurred.15 Later, at the Mamaroneck police
station, a Mamaroneck detective, who was in possession of the defendant’s
cell phone, read the defendant’s subscriber number out loud.16 Weisgerber
then executed a search warrant on Sprint Spectrum L.P. for the telephone
records.17
11. Id. The court noted that there was conflicting testimony about the presence of the
Norwalk police during the search. See id. at 1077 n.5. While Weisgerber testified that he and
the other Norwalk officer were present in the kitchen of the apartment during the search, a
Mamaroneck officer testified that both Norwalk officers were outside during this time. Id.
Nevertheless, the court concluded that the Norwalk police were inside the apartment, yet they
did not participate in the search. Id.
12. Specifically, police found “crack cocaine, drug paraphernalia, a scale, a razor blade
and a computer in the apartment.” Id. at 1077. They did not, however, find any evidence
related to the murder. Id.
13. Id. Once they arrived, the police officers that had stopped the defendant had already
arrested him on drug charges based on the evidence obtained in the defendant’s apartment. Id.
14. Id.
15. Id. at n.6. After the cell phone was seen on the seat of defendant’s car, the next point
in time where the record indicates the location of the cell phone is in the hands of a New York
police officer within the New York police station. Id. at 1077.
16. Id. The Norwalk police were present in the Mamaroneck police station to interview
defendant’s girlfriend about the murder. Id. Before the Norwalk police went in to interview
defendant’s girlfriend, they were near the Mamaroneck detective who was scrolling through
the numbers on defendant’s cell phone. Id. The Mamaroneck detective then announced out
loud several numbers listed on the cell phone. Id. After the detective publicized the subscriber
number, Chrzanowski, a Norwalk officer, wrote it down. Id.
17. Id. at 1077–78. The court noted that the cell phone records indicated that within the
hour before the victim was shot, the defendant’s calls, routed through telecommunications
towers, were “progressing in a northeasterly direction from Mamaroneck to Norwalk.” Id. at
1078. Further, the court observed through the cell phone records that minutes before the
victim’s murder, the defendant was making and receiving calls that were routed through a
tower about five blocks away from where the shooting took place. Id. Finally, the cell phone
records showed that minutes after the shooting, the defendant’s calls were “progressing in a
southwesterly direction from Norwalk to Mamaroneck.” Id.
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Before trial, the trial court denied the defendant’s motion to suppress all
evidence procured as a result of the seizure of the cell phone.18 Following a
jury trial, the defendant was convicted of murder.19
On appeal, the Supreme Court of Connecticut determined that New York
law, rather than Connecticut law, governed the legality of the search.20
Although the court found “that the defendant had a reasonable expectation of
privacy in all of the contents of his cell phone,”21 after applying New York
law, the court held that the police had probable cause to seize and search the
contents of his cell phone under the automobile exception to the New York
constitution.22
III. HISTORY OF THE “INTERSTATE SILVER PLATTER DOCTRINE”
The silver platter doctrine originally developed as a mechanism to admit
unconstitutionally seized evidence into federal criminal proceedings.23 In
Weeks v. United States,24 the Court created the exclusionary rule, which, at
the time, only applied to federal officials in federal courts.25 Thus, evidence
seized illegally by state officials could be handed over to federal officials on
a silver platter and used in federal courts, so long as no agency relationship
existed between the state and federal officers.26 In Elkins v. United States,27
the United States Supreme Court overruled the silver platter doctrine,
holding that evidence obtained by state officers in violation of the Fourth
Amendment is inadmissible in federal court.28 Thereafter, in Mapp v. Ohio,29
18. Id. “The trial court concluded that the search warrant had authorized the seizure and
search of the cell phone because it authorized the search of the defendant for evidence of drug
activity and . . . the Mamaroneck police had seized the cell phone on the basis of their
experience that cell phones contain such information.” Id. In denying the motion, the court
also stated that the inevitable discovery doctrine applied, and the Norwalk police would have
learned the cell phone number from the defendant’s girlfriend when they interviewed her. Id.
at 1078–79.
19. Id. at 1075.
20. Id. at 1088.
21. Id. at 1083.
22. Id. at 1090.
23. See James W. Diehm, Article: New Federalism and Constitutional Criminal
Procedure: Are We Repeating the Mistakes of the Past? 55 MD. L. REV. 223, 226–31 (1996).
24. 232 U.S. 383 (1914).
25. Id. at 398.
26. Byars v. United States, 273 U.S. 28, 33 (1927).
27. 364 U.S. 206 (1960).
28. Id. at 223.
29. 367 U.S. 643 (1961).
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AGENCY ANALYSIS AND ADMISSIBILITY OF EVIDENCE
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the Supreme Court held that evidence obtained in violation of the Fourth
Amendment was also inadmissible in state courts.30
The silver platter doctrine is still implicated today because differences in
state constitutional law exist, in which a state’s constitutional search and
seizure laws may be more protective than those of other states.31 Forum
states confronted with evidence obtained in another jurisdiction must decide
whether or not to admit the evidence.32
Because the Connecticut Supreme Court has yet to decide whether a
Connecticut trial court should admit evidence that was legally seized by an
official of another state, when the search would have been illegal and thus
barred in Connecticut, there was no controlling precedent for the Connecticut
Supreme Court to evaluate on the subject. However, there is a line of state
cases that were influential in the Connecticut Supreme Court’s analysis and
reasoning in Boyd.
While a court could decide which law to apply by conducting a conflict
of law analysis, most agree that using an exclusionary rule analysis is
preferable.33 Under an exclusionary rule analysis, the court first identifies the
principles underlying the state’s exclusionary rule, and then the court
considers whether the application of the exclusionary rule in the particular
case would sufficiently advance those purposes.34 For many courts, the
primary justification for the exclusionary rule is to deter future police
misconduct.35 These courts reason that since the primary justification of the
30. Id. at 660. The court reasoned that evidence obtained in violation of the Constitution
should be inadmissible in state courts because the Fourth Amendment was now applicable,
through the Fourteenth Amendment, to the states. Id. at 655.
31. See Barry Latzer, The New Judicial Federalism and Criminal Justice: Two
Problems and a Response, 22 RUTGERS L.J. 863, 870 (1991). Moreover, the issue of the
“reverse silver platter” exists today because many states’ constitutional protections are broader
than those of the federal government. See Robert F. Williams, State Constitutional
Methodology in Search and Seizure Cases, 77 MISS. L.J. 225, 256–58 (2007) (noting that
“evidence seized legally by federal law enforcement officials . . . could be introduced in a
state court proceeding after the federal officials declined to prosecute even though it would
have been illegal for the state law enforcement officers to seize the evidence.”) (citing State v.
Mollica, 554 A.2d 1315, 1326–27 (N.J. 1989)) (emphasis in original).
32. See Latzer, supra note 31, at 869–84.
33. Tom Quigley, Do Silver Platters Have a Place in State–Federal Relations? Using
Illegally Obtained Evidence in Criminal Prosecutions, 20 ARIZ. ST. L.J. 285, 321–24 (1988).
34. State v. Bridges, 925 P.2d 357, 365–66 (Haw. 1996).
35. See Echols v. State, 484 So. 2d 568, 572 (Fla. 1985); State v. Lucas, 372 N.W.2d
731, 737 (Minn. 1985); Mollica, 554 A.2d at 1327; State v. Cauley, 863 S.W.2d 411, 415–16
(Tenn. 1993); State v. Evers, 815 A.2d 432, 444 (N.J. 2003). In applying an exclusionary rule
analysis, other courts consider other purposes, including judicial integrity and individual
privacy. See, e.g., Bridges, 925 P.2d at 366–367.
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exclusionary rule is police deterrence, that purpose is not furthered by
excluding legally obtained evidence.36 Other courts, however, apply their
own state constitutional law on the searches and seizures and suppress the
evidence.37
A further complication arises when officers from the forum state
participate with the officers from the search jurisdiction. Many state courts
take the approach that, “when evidence was obtained in a search that was
legal in the search jurisdiction but that would have been illegal in the forum
jurisdiction, the evidence is inadmissible in the forum jurisdiction if officers
from the forum jurisdiction participated in the search.”38 Other states
conclude that, when the search and seizure of the evidence is “valid under
the law of the search jurisdiction but would be regarded as unlawful had it
occurred in the forum . . . the evidence should be admitted even if police
agents of the forum participated in the extra-jurisdictional search.”39
36. State v. Boyd, 992 A.2d 1071, 1085 (Conn. 2010) (citing Mollica, 554 A.2d at
1328–29). See also Commonwealth v. Sanchez, 716 A.2d 1221, 1225 (Pa. 1981) (arguing that
the sole “effect of suppression would [be] to keep highly probative and lawfully obtained
evidence from the jury”) (internal quotation marks omitted); Evers, 815 A.2d at 446 (noting
that the exclusion of legally obtained evidence “would disserve the process of doing justice in
this state by preventing the introduction of reliable and relevant evidence”).
37. See Stidham v. State, 608 N.E.2d 699, 701 (Ind. 1993) (finding that when the
confession was obtained legally in Illinois, but would have been illegal in Indiana, it was
inadmissible in Indiana); State v. Lynch, 969 P.2d 920, 922–23 (Mont. 1998) (noting that
when the evidence is obtained legally in Nevada, but the search would have been illegal in
Montana, the evidence was inadmissible in Montana because the exclusionary rule is a rule of
evidence and evidentiary rules of the forum state apply); People v. Griminger, 524 N.E.2d
409, 412 (N.Y. 1988) (“Since [the] defendant had been tried for crimes defined by the State’s
Penal Law, we can discern no reason why he should not also be afforded the benefit of our
State’s search and seizure protections.”); State v. Davis 834 P.2d 1008, 1012–13 (Or. 1992)
(holding that Oregon’s constitutional law applies to all evidence presented in Oregon courts,
regardless of whether the search was legal under the law of the jurisdiction where obtained).
38. Boyd, 992 A.2d at 1087. See Cauley, 863 S.W.2d at 416 (“When evidence is used in
a Tennessee courtroom that has been obtained at the behest of Tennessee authorities pursuant
to their own investigation of a crime occurring within our borders, as in the instant case,
Tennessee’s constitutional search and seizure principles should apply.”); State v. Brown, 940
P.2d 546, 577 (Wash. 1997) (noting that whether statements legally obtained in California
could be admitted under Washington law depended on whether California police had acted as
agents of Washington police).
39. R. Tullis & L. Ludlow, Admissibility of Evidence Seized in Another Jurisdiction:
Choice of Law and the Exclusionary Rule, 10 U.S.F. L. REV. 67, 91 (1975). See also Echols,
484 So. 2d at 571–72 (“[W]e do not believe the interest of Florida is served by imperially
attempting to require that out-of-state police officials follow Florida law, and not the law of
the situs, when they are requested to cooperate with Florida officials in investigating crimes
committed in Florida.”).
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In State v. Mollica, the Supreme Court of New Jersey held that the New
Jersey Constitution does not govern the legality of searches conducted by
federal officers when their conduct is pursuant to the Federal Constitution.40
The court warned, however, that “[t]he critical element” is “the presence or
absence of agency between the officers of the two sovereigns [in
determining] the applicability of the constitutional standards of the forum
jurisdiction.”41
IV. THE COURT’S REASONING
The court began its analysis by determining whether the defendant had a
reasonable expectation of privacy in the contents of his cell phone under the
Fourth Amendment to the U.S. Constitution.42 The court noted that to have
standing, the defendant must have a subjective expectation of privacy that
society would recognize as objectively reasonable.43 Looking at the totality
40. 554 A.2d at 1330.
41. Id. at 1326. The court outlined its agency analysis:
The assessment of the agency issue necessarily requires an examination of the entire
relationship between the two sets of government actors no matter how obvious or
obscure, plain or subtle, brief or prolonged their interactions may be. The reasons and
the motives for making any search must be examined as well as the actions taken by
the respective officers and the process used to find, select, and seize the evidence . . . .
Differing relationships and interactions may suffice to establish agency. Thus,
antecedent mutual planning, joint operations, cooperative investigations, or mutual
assistance between federal and state officers may sufficiently establish agency and
serve to bring the conduct of the federal agents under the color of state law. On the
other hand, mere contact, awareness of ongoing investigations, or the exchange of
information may not transmute the relationship into one of agency.
Id. at 1329. See State v. Knight, 678 A.2d 642, 657 (N.J. 1996) (using the Mollica agency
doctrine, the court held that an F.B.I. agent was acting as an agent of the county’s prosecutor’s
office when he interrogated the defendant).
42. Boyd, 992 A.2d at 1079. The court noted that although the trial court did not
explicitly rule on this issue, when the court concluded that the cell phone was covered under
the search warrant, it implicitly concluded that the defendant did have an expectation of
privacy. Id. at 1079 n.7. The court does not differentiate between the standing requirements
under the Connecticut Constitution and that of the United States Constitution. Instead, the
court completely adopts the federal standing analysis. See id. at 1079–80. See also Wesley W.
Horton, The Connecticut State Constitution: A Reference Guide, in REFERENCE GUIDES TO THE
STATE CONSTITUTIONS OF THE UNITED STATES 1993, 51 (1993) (noting that “there appears to
be little textual difference between the state and federal provisions [of the search and seizures
clauses]”).
43. Boyd, 992 A.2d at 1080 (citing State v. Hill, 675 A.2d 866 (Conn. 1996)).
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of the circumstances, the court determined that the trial court could have
reasonably concluded that not only did the defendant own the cell phone but
also exercised exclusive control over it, and, therefore, the defendant had a
reasonable expectation of privacy in its contents, including the subscriber
number.44
Next, the court considered whether to apply Connecticut or New York
law to the search.45 Since this question, determining which law to apply to
the seizure of the defendant’s cell phone, was an issue of first impression
before the court, the court looked at the approaches that other jurisdictions
have adopted.46 The Supreme Court of Connecticut agreed with the majority
44. Boyd, 992 A.2d at 1081. Specifically, the court found that the evidence presented at
the suppression hearing established that the cell phone belonged to the defendant. Id.
Moreover, the court noted that the cell phone was in the defendant’s exclusive possession. Id.
Additionally, the court found that the police had seized the cell phone from the car that only
the defendant had been driving. Id.
The court rejected the state’s argument that even if defendant had a reasonable
expectation of privacy in the cell phone, he could not have one in the subscriber number. Id. at
1082–83. The court found that even though the defendant’s cell phone number was not
confidential, the defendant still had a reasonable expectation that “the police would not search
the contents of his cell phone for the number without a warrant.” Id. at 1083.
45. Id. While the forum is Connecticut, the search and seizure occurred in New York.
See id. at 1071, 1076–77. The court noted that if Connecticut law applied, the search would be
unconstitutional. Id. at 1083 (quoting State v. Miller, 630 A.2d 1315, 1326 (Conn. 1993) (“a
warrantless automobile search supported by probable cause, but conducted after the
automobile has been impounded at the police station, violates article first, § 7, of the
Connecticut constitution.”)). However, if New York law applied, the search would be
constitutional. Id. (citing People v. Blasich, 541 N.E.2d 40, 45 (N.Y. 1989) (arguing that the
automobile exception “is equally applicable whether the search is conducted at the time and
place where the automobile was stopped or whether, instead, the vehicle is impounded and
searched after removal to the police station”)). Moreover, the court looked at the history of the
automobile exception in Connecticut, and determined that the exception is narrower than in
New York. See id. at 1083–84.
46. See id. at 1084–85; State v. Mollica, 554 A.2d 1315, 1327–28 (N.J. 1989) (“It does
not offend the constitutional principles of a forum jurisdiction to allow the transfer of criminal
evidence from the officers of another jurisdiction to those of the forum when the evidence has
been obtained lawfully by the former without any assistance by the latter.”); Echols v. State
484 So. 2d at 571 (Fla. 1985) (“The primary purpose of the exclusionary rule is to deter future
official police misconduct . . . [thus we] do not believe exclusion of the evidence would have
any discernible effect on police officers of other states who conduct investigations in
accordance with the laws of their state and of the United States Constitution.”) (citations
omitted); State v. Lucas, 372 N.W.2d 731, 737 (Minn. 1985) (arguing that the exclusion of
legally obtained tapes is not justified because it would not serve to deter illegal conduct by
police officers in either the forum’s state or the state where search was conducted); State v.
Evers, 815 A.2d 432, 446 (N.J. 2003) (determining that the exclusion of legally obtained
evidence is not justified because it “would advance none of its purposes—deterrence, judicial
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of courts that employ an exclusionary rule analysis.47 The court recognized
that the purpose underlying the exclusionary rule in Connecticut is to deter
future police misconduct.48 Thus the “application of the exclusionary rule to
evidence that was obtained legally by officers of another jurisdiction will not
deter unlawful police conduct whether in this state or in other
jurisdictions.”49
The defendant argued, however, that there was a wrinkle in the present
case because the New York officers acted as agents for the Connecticut
officers.50 Since this issue was also one of first impression, the court again
looked at other jurisdictions.51 Even though both Connecticut and New York
officers were present during the search, the court ultimately decided against
determining the effect of participation by Connecticut officials in a search
that is legal in the search jurisdiction, but which would be illegal in
Connecticut.52 Instead, the court reasoned, on the facts, it did not need to
integrity, and imposing a cost on illicit behavior”); State v. Cauley, 863 S.W.2d 411, 416
(Tenn. 1993) (arguing that the law of the jurisdiction where the warrant and evidence were
obtained governs the validity of the search absent agency with the forum state).
47. See Boyd, 992 A.2d at 1086 (explaining that the application of the exclusionary rule
is only appropriate where its purpose will likely be furthered). In State v. Bridges, the court
explained “[t]he first step in an exclusionary rule analysis is to identify the principles
underlying the exclusionary rule.” 925 P.2d 357, 365 (Haw. 1996). The final step of the
analysis is considering “[w]hether the application of the exclusionary rule in [the] case would
sufficiently advance [the state’s exclusionary rule’s] purposes, so as to justify the suppression
of the reliable, probative evidence . . .” Id. at 365–66.
48. Boyd, 992 A.2d at 1086 (citing Payne v. Robinson, 541 A.2d 504 (Conn. 1988),
cert. denied, 488 U.S. 898 (1988)).
49. Id.
50. Id. The defendant’s argument rests on the fact that Connecticut police were
allegedly participating in a search that would have been illegal in Connecticut. See id. The
defendant relied on cases in which federal officers participated in illegal searches conducted
by state police. Id. at 1086–87 n.13. Although the cases were decided before the silver platter
doctrine was overturned in Elkins, courts have always employed an agency analysis in
determining the admissibility of evidence obtained in another jurisdiction. See Mollica, 554
A.2d 1315, 1326–27. The defendant supported his argument with Lustig v. United States, 338
U.S. 74, 78–80 (1949) (holding that federal officer’s participation in illegal search conducted
by state officials rendered the evidence inadmissible in federal criminal proceeding); accord
Gambino v. United States, 275 U.S. 310, 316–17 (1927) (noting that when an unconstitutional
search and seizure was made solely for the purpose of aiding the United States in enforcement
of its laws, evidence was inadmissible in federal criminal proceeding); see also Byars v.
United States, 273 U.S. 28, 33 (1927) (concluding that when a federal officer participated in
an illegal search conducted by state police, the “effect is the same as though he had engaged in
the undertaking as one exclusively his own”).
51. See Boyd, 992 A.2d at 1087 n.14. See supra text accompanying notes 36 and 37.
52. Boyd, 992 A.2d at 1087.
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decide that question.53 Relying on the trial court’s finding, the court
explained:
The evidence shows that Norwalk police were not present while the
Mamaroneck police engaged in conduct that the defendant claims would
have been unconstitutional if conducted by Connecticut officials, namely, the
seizure of the defendant’s cell phone after his automobile was impounded.
Moreover, there was no evidence that the Norwalk police had any knowledge
that the Mamaroneck police intended to engage in such conduct or that they
had influenced the Mamaroneck police in any way . . . Because it is clear
that, under any standard, the Mamaroneck police were not acting as agents
for the Norwalk police, the legality of the search must be determined under
54
New York law.
Lastly, once the court determined that New York law applied, the court
looked at the history of the automobile exception to the constitutional
requirement of a warrant under New York search and seizure law.55 The
court applied the Blasich standard,56 and found
the police had probable cause to believe that the defendant was selling drugs,
because the defendant’s cell phone was visible in the defendant’s car when
the police arrested him and because the police had probable cause to believe
57
that the cell phone contained evidence of drug activity.
53. Id.
54. Id. at 1087–88. The court reasoned, “[i]ndeed, if the Norwalk police had intended to
obtain the cell phone, they could have asked the Mamaroneck police to seize it from the
defendant’s automobile when he was arrested.” Id. at 1088 n.15.
55. Id. at 1088.
56. Id. at 1088–89. See People v. Blasich 541 N.E.2d 40, 43 (N.Y. 1989) (holding that a
warrantless vehicular search falls within the automobile exception when the police have
“probable cause to believe that the vehicle contains contraband, evidence of the crime, a
weapon or some means of escape”); see also People v. Belton, 432 N.E.2d 745, 748 (N.Y.
1982) (“[A] valid arrest for a crime authorizes a warrantless search–for a reasonable time and
to a reasonable extent–of a vehicle and of a closed container visible in the passenger
compartment of the vehicle which the arrested person is driving …when the circumstances
give reason to believe that the vehicle or its visible contents may be related to the crime for
which the arrest is being made . . .”).
57. Id. The court noted that this search would be legal under the search incident to arrest
exception under the Federal Constitution. Id. at 748 n.16 (citing Arizona v. Gant, 129 S.Ct.
1710, 1719 (2009)). However, the search incident to arrest exception under the New York
Constitution is narrower, and would not apply in the present case because the car was
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Therefore, the court held that the search of the cell phone was valid
under New York’s automobile exception.58
V. AUTHOR’S ANALYSIS
This Comment first contends that the court correctly chose the
exclusionary rule analysis to determine which state law to apply. Second, it
contends that under the exclusionary rule analysis, the court should have
gone further and applied an agency analysis to the relationship between the
Connecticut and New York police. Finally, this Comment notes that the
court’s failure to address the question of which law applies when
Connecticut police participate in a legal search in another jurisdiction, that
would otherwise be illegal in Connecticut, will lead to uncertainty and
promote police misconduct, and recommends that the court outline an agency
analysis.
A. Soundness of the Opinion
The court correctly chose to adopt the exclusionary rule analysis rather
than the conflicts of law approach in determining whether to apply
Connecticut or New York constitutional law to the search and seizure of the
defendant’s cell phone.59 Because the primary purpose of Connecticut’s
exclusionary rule is to deter future unlawful police conduct, evidence should
only be excluded in situations where this purpose will be furthered.60 The
court correctly recognized that Connecticut’s constitutional values will not
impounded before the search. See id. Thus, the court must use the automobile exception to the
New York Constitution to find that the search was legal under New York law. See id.
58. Id.
59. See Latzer, supra note 31, at 875 (arguing that the exclusionary rule analysis
“appears better suited to criminal cases than conflicts of law theories”). The court joins a
number of other states in determining that the exclusionary rule analysis is the best approach.
See People v. Porter, 742 P.2d 922, 925 (Colo. 1987) (“Both courts and commentators have
concluded that it is preferable to use an exclusionary rule analysis rather than the traditional
conflicts of law approach to determine the admissibility of evidence in the forum state which
is obtained in another jurisdiction.”); State v. Minter, 561 A.2d 570, 576 (N.J. 1989) (“The
better approach, we think, is the exclusionary–rule analysis . . . ”); State v. Bridges, 925 P.2d
357, 365 (Haw. 1996) (“Because the exclusionary rule analysis focuses specifically on the
issues pertaining to conflicts issues in interstate search and seizure cases, we agree that it is
the better approach.”).
60. Payne v. Robinson, 541 A.2d 504, 506 (Conn. 1988).
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be threatened when it is only the conduct of another jurisdiction’s officials
that is involved.61
It is not so clear, however, that the New York police were acting
independently of the Connecticut police. The premise that deterrence for
Connecticut police misconduct will not be furthered rests on the assumption
that a New York police officer, independent of the Connecticut police, seized
the cell phone from the defendant’s car.62 As the court points out, however,
the record is devoid as to who initially seized the cell phone.63 Yet, the court
ignores this factor and concludes that the Connecticut police did not
participate in the search because it was only the New York police who were
implicated in the determination of the defendant’s cell phone number.64
While the court gave little deference to the importance of who initially seized
the cell phone, that factor is critical in assessing which law to apply.65
Moreover, the court should have engaged in a more thorough agency
analysis.66 Instead of engaging in a fact-based inquiry into agency, the court
61. See Mollica, 554 A.2d 1315, 1328 (N.J. 1989) (“None of [our] constitutional values,
however, is genuinely threatened by a search and seizure of evidence, conducted by the
officers of another jurisdiction under the authority and in conformity with the law of their own
jurisdiction, that is totally independent of our own government officers.”); accord State v.
Cauley, 863 S.W.2d 411, 415–16 (Tenn. 1993).
62. See Jill E. Fisch, Turf Wars: Federal–State Cooperation and the Reverse Silver
Platter Doctrine, 23 CRIM. L. BULL. 509, 527 (1987) (“Evidence legally obtained by one
police agency may be made available to other such agencies without a warrant, even for a use
different from that for which it was originally taken.”) (internal quotation marks excluded)
(citing 1 W. LAFAVE, SEARCH AND SEIZURE § 1.3(c), at 119 (1987) (quoting United States v.
Lester, 647 F.2d 869, 875 (8th Cir. 1981)).
63. See State v. Boyd, 992 A.2d at 1077 n.6. The first indication that the court gives that
the cell phone had been seized is that a New York detective had the cell phone in his
possession at his desk and was scrolling through the numbers. Id. at 1077.
64. Id.
65. If Connecticut police had seized the cell phone from the car, a search that would be
illegal if conducted in Connecticut, the court should have excluded the evidence to promote
deterrence of police misconduct. If New York police had seized the phone, then no deterrence
rationale applies, and the court was correct in admitting the evidence.
66. An agency relationship between the New York police and Connecticut police is an
alternate ground on which the evidence should have been suppressed. Even if the Connecticut
police were not implicated in seizing the defendant’s cell phone, if the New York police
seized it at the behest of the Connecticut police, deterrence would be furthered. Since even
before the silver platter doctrine was overturned, the showing of an agency relationship
effected courts’ decisions in applying the law of the search jurisdiction. See, e.g., Mollica 554
A.2d at 1327 (“As with the earlier manifestations of the silver platter doctrine, and as seen in
the numerous post–Mapp examples of interstate transfers of evidence, the salient factor
continues to be agency vel non between the officers of the respective jurisdictions.”).
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provides only a cursory conclusion that such a relationship did not exist.67
The court’s legal conclusion seems inconsistent with the record. For
instance, the court admits that the Connecticut police were present during the
search and that it is unclear if Connecticut or New York police seized the cell
phone from the car,68 but nevertheless concludes, “[t]he evidence shows that
Norwalk [, Connecticut] police were not present while the Mamaroneck [,
New York] police engaged in conduct that the defendant claims would have
been unconstitutional if conducted by Connecticut officials, namely, the
seizure of the defendant’s cell phone after his automobile was impounded.”69
Because the record suggests an agency relationship could have existed
between the Connecticut and New York officers, but there is not enough
evidence to decide the issue, the court should have outlined an agency
analysis70 and remanded the case to the trial court to make factual findings
about the relationship between the officers.71
67. Boyd, 992 A.2d at 1077. The court reasoned that it does not have to rule on this
issue “because, upon careful review of the record, we conclude that the trial court’s finding
that ‘the Norwalk police were not implicated in the determination of the cell phone number; it
was solely the Mamaroneck police who did so,’ was supported by substantial evidence.” Id.
68. See id. at n.6.
69. See id. The court further concludes:
The evidence shows that Norwalk police were not present while the Mamaroneck
police engaged in conduct that the defendant claims would have been unconstitutional
if conducted by Connecticut officials, namely, the seizure of the defendant’s cell
phone after his automobile was impounded. Moreover, there was no evidence that the
Mamaroneck police intended to engage in such conduct or that they had influenced
the Mamaroneck police in any way. In addition, although the Norwalk police were
present in the police station when [a New York detective] searched the contents of the
cell phone and announced the cell number, they were there to interview [the
defendant’s girlfriend], not to obtain information about the search from the
Mamaroneck police. Indeed, there was no evidence that the Norwalk police knew that
the Mamaroneck police had seized the cell phone, that they would search its contents
or that they would announce their findings. We conclude, therefore, that there was no
evidence to support a conclusion that the Norwalk police had intended to violate the
state constitution . . . .
Id. at 1087–88.
70. See Mollica, 554 A.2d at 1328–29; State v. Knight, 678 A.2d at 655–56 (N.J. 1996).
71. It does not appear from the record that there is enough evidence to determine the
relationship between the Connecticut and New York police. See generally Boyd, 992 A.2d
1071.
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B. Implications and Recommendations
It is inevitable that Connecticut police, acting as forum agents, will
engage in search activities in other jurisdictions. In effect, because the
Connecticut Supreme Court declined to rule on the question of agency in
admitting evidence from another jurisdiction, the court is encouraging
Connecticut police to conduct searches in other jurisdictions that violate the
Connecticut Constitution.72 Further, Connecticut officers will circumvent the
state constitution by working in cahoots with officers of the search
jurisdiction under the guise of a no-agency relationship.73
Not only does the court’s decision promote police misconduct, but it also
treats similarly situated defendants differently. For example, some
defendants aggrieved by the same illegal search under the Connecticut
Constitution will be protected by the exclusionary rule,74 while other
defendants will be left without a remedy.75
The Connecticut Supreme Court should adopt an agency standard to
apply to the exclusionary rule analysis in determining which state law to
apply when the search jurisdiction is other than Connecticut.76 Specifically,
the court should apply the agency analysis articulated in Mollica.77 Under
such an approach, courts look at the totality of the circumstances surrounding
the entire relationship between the two sets of officers, even if agency, or the
72. See, e.g., People v. Mattson, 688 P.2d 877, 891 (Cal. 1984) (“To sanction such
[searches] would encourage [forum state] police to engage in activities outside our borders
that violate our own constitutional standards.”). See also Mary Jane Morrison, Choice of Law
for Unlawful Searches, 41 OKLA. L. REV. 579, 623 (1988) (“The forum should reason that
displacing the forum’s suppressing rule in favor of the situs’ admitting rule tells forum police
they are free of forum law constraints when they act outside the forum as long as they
coordinate with situs police.”).
73. Boyd sets a precedent that if Connecticut officers participate in a search in New
York, they just need to testify that, though they were present, they did not participate and do
not remember who actually seized the evidence. 992 A.2d at 1087–88. See Fisch, supra note
62, at 531 n.96 (arguing that police officers will “look for some means to ‘cleanse’ the
evidence of its taint”).
74. This is the case, if the search was conducted within Connecticut.
75. This would be the case, if the search occurred lawfully in another jurisdiction, even
with the aid of or at the behest of Connecticut officers.
76. Because the Connecticut Supreme Court chose to apply an exclusionary rule
analysis instead of a conflicts of law approach to determine the admissibility of evidence
seized in another jurisdiction, it is only natural for it to apply the same exclusionary rule
analysis to evidence obtained in another jurisdiction with the participation of Connecticut
officers.
77. See Mollica, 554 A.2d at 1328–29. See also supra text accompanying note 41.
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lack thereof, appears obvious from the surface.78 Additionally, the reasons
and motives behind the seizure must be taken into account.79 If, under the
totality of the circumstances, an agency relationship is established, the court
should apply Connecticut search and seizure law to determine the
admissibility of the evidence in order to promote the integrity of the
Connecticut Constitution.
VI. CONCLUSION
In State v. Boyd, the Connecticut Supreme Court held that article I,
section 7 of the Connecticut Constitution does not pertain to evidence
obtained by state officials in another jurisdiction working independently of
Connecticut officials. The court, however, failed to decide whether an
agency relationship between the forum police and the search jurisdiction
police affects the choice of law. As a result of this shortcoming in the court’s
decision, Connecticut police officers will be encouraged to circumvent the
state constitution by conducting illegal searches in other jurisdictions. The
Connecticut Supreme Court should have determined that if an agency
relationship exists, Connecticut law applies.
78. Mollica, 554 A.2d at 1329–30. The Boyd court fell into this trap because it made
only a cursory conclusion about agency based on appearances rather than factual
determinations. See Boyd, 992 A.2d at 1087–88.
79. Mollica, 554 A.2d at 1329–30.