Opinion
FILE No. 187
Convicted of the illegal use of a siren in violation of 14-80 (d), the defendant appealed claiming error in the denial of his motion to suppress certain evidence and in the denial of his request for a continuance because of the absence of an expert witness. Held: 1. Since a police officer may, without a warrant, stop and search a vehicle which he reasonably believes to contain any object which violates the law, and since the officer who searched the defendant's vehicle had probable cause to believe that it was unlawfully equipped with a siren, he had the right to make a limited search of the vehicle without obtaining a warrant. 2. Since there was no indication that the defendant had previously engaged the expert for whom the continuance was requested or that he had attempted to have the expert in court on any day of the trial, and since the state had stipulated with the defendant that a letter containing the opinion of the expert might be admitted as embodying his testimony, the denial of the continuance was not an abuse of the trial court's discretion and the defendant was not prejudiced by it.
Argued September 15, 1976 —
Decided December 3, 1976
Information charging the defendant with illegal use of a siren, brought to the Court of Common Pleas in the first geographical area and tried to the court, Callahan, J.; judgment of guilty and appeal by the defendant. No error.
Anthony A. Piazza, for the appellant (defendant).
Martin L. Nigro, assistant prosecuting attorney, with whom, on the brief, was Michael Sherman, assistant prosecuting attorney, for the appellee (state).
After a trial without a jury the defendant was found guilty of the illegal use of a siren in violation of General Statutes 14-80 (d). The defendant claims error in the denial of his motion to suppress certain evidence, in the denial of his request for a continuance because of the absence of a witness and in the conclusion of guilt reached by the trial court on the facts found.
General Statutes 14-80 (d) provides that: "Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. No vehicle shall be equipped with, nor shall any person use upon a vehicle, any siren, whistle or bell as a warning signal device, except as otherwise permitted in this section. Any motor vehicle may be equipped with a theft alarm signal device which shall be so arranged that it cannot be used by the driver as an ordinary warning signal. Any authorized emergency vehicle may be equipped with a siren, whistle or bell, capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet and of a type approved by the motor vehicle department, but such signal shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which events the driver of such vehicle shall sound such signal when reasonably necessary to warn pedestrians and other drivers of the approach thereof."
The finding states that on February 10, 1975, at about 3 p.m., Rocco Lagonegro and his wife were proceeding in an automobile on an entrance ramp to the Connecticut turnpike in Stamford when a wrecker driven by the defendant cut them off. Lagonegro caught up with the wrecker on the turnpike after about one mile. As he pulled alongside, a siren was heard and he and his wife concluded that it must have come from the wrecker. Lagonegro then pulled off the highway and reported the incident to the police, giving the registration number of the wrecker. The number was traced to Chris Automotive Service in Fairfield. When the police officer to whom the incident had been reported went to that location he saw the wrecker pulling out as he arrived and he stopped it about two blocks away. The wrecker was being operated by an employee who opened the door of the vehicle and unlatched the hood as requested by the officer in order to enable him to make an inspection. The officer found an electric police siren attached to the engine frame and wired into a solenoid and also into the battery. Under the dashboard in the cab of the truck was a toggle switch. While the truck was parked with the engine running, the officer found that when the toggle switch was moved and when the horn on the steering wheel was depressed the siren would sound.
The defendant, who came to the scene soon after the truck was stopped, admitted that he had been operating the truck at the time of the incident involving Lagonegro. The defendant told the officer that the siren was part of a burglar alarm system which was being installed in the truck but which had not been completed. In the opinion of the officer the siren was hooked up in the same way as a siren in a police car.
The defendant claims that the search conducted by the officer after the vehicle was stopped as it was being driven by the employee of the defendant was illegal. He concedes that the officer had probable cause to make the search but claims there were no exigent circumstances to justify the failure to obtain a search warrant beforehand. The state claims that there was consent to the search on the part of the defendant's employee who had the vehicle in his custody. It is unnecessary to consider that claim because the trial court made no finding of such voluntary consent but relied wholly upon the so-called automobile exception to the search warrant requirement.
Ever since Carroll v. United States, 267 U.S. 132, it has been clear that a police officer may, without a warrant, stop and search on a highway a vehicle which he reasonably believes to contain any object which offends against the law. The mobility of a vehicle as compared to a house has been deemed to render it impracticable to obtain a warrant before conducting the search. Id., 153. The rule has been extended beyond this original rationale to justify a warrantless search of a vehicle used in the commission of a crime after it has been immobilized and a warrant could readily be obtained. Chambers v. Maroney, 399 U.S. 42. The right to seize carries with it the right to search the vehicle. "For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant." Id., 52.
Since it is not disputed that the officer had probable cause to believe that the defendant's wrecker was unlawfully equipped with a siren, he had a right to stop and to seize it when he observed the vehicle being operated on a public highway. General Statutes 14-103 (c) expressly gives to state and local police officers the right to stop any motor vehicle ". . . whenever they see a motor vehicle being operated in apparent violation of any statute relative to the equipment of a motor vehicle . . . ." According to the information received by the officer, the defendant's vehicle was being operated in apparent violation of 14-80 (d) which prohibits a vehicle from being equipped with a siren. Even if he may previously have had an opportunity to obtain a search warrant, he was not bound to tolerate a continued violation of the law. His right to seize the vehicle is clear under the circumstances, and his right to make a limited search for the offending object without obtaining a warrant is equally plain. Chambers v. Maroney, supra, 52.
The defendant also claims error in the refusal of the court, after the state had rested, to continue the case for a couple of days to allow him to bring from New York an expert witness to testify about the siren in the vehicle. A continuance of two days had been allowed during the trial, at the request of the state, so that a policeman would be available to testify. It does not appear from the record that the defendant had previously engaged the expert for whom a continuance was requested. There was no indication that the defendant had attempted to have his expert in court on any day of the trial. The trial judge denied the request, remarking that he was leaving the geographical area where the trial was held that day and did not expect to be back. After that ruling the state stipulated with the defendant that a letter containing an opinion of a service manager for an automobile dealer who had serviced the wrecker and examined the siren installation might be introduced as embodying the testimony of that witness.
We have recently discussed the obligation of the parties to provide for the attendance of witnesses upon the trial dates as assigned. State v. Michaels, 34 Conn. Sup. 514. In the present case the only excuse suggested by the defendant for his failure to arrange to have his expert present was the fact that at the start of the trial two days earlier a substituted information was filed charging a violation of 14-80 (d) instead of 14-283 (h) which the officer had originally cited. No request for a postponement was made by the defendant at that time. It is evident from the content of the letter, which he had obtained from an automobile service manager, that the defendant was fully aware of the nature of any issue upon which expert testimony might prove useful. We can find no abuse of discretion in the denial of this request for a continuance. The defendant was not prejudiced in any event, in view of the stipulation that the substance of the expert's testimony was contained in the letter presented to the court as an exhibit. Rusch v. Cox, 130 Conn. 26, 32.
The defendant's claim that the evidence is insufficient to warrant a finding of guilty seems to be based on the assumption that the court was bound to accept portions of the testimony of the defendant as well as the opinion of the expert contained in the letter submitted as an exhibit unless the state offered evidence in direct contradiction. We are not aware of any such principle of law. It is commonplace to observe that the credibility of witnesses and the weight to be accorded their testimony is wholly within the province of the trier to decide. State v. Farrah, 161 Conn. 43, 49. There was ample testimony to support the conclusion of guilt reached by the trial court in this case.