203 A.2d 305 (Conn. 1964), State v. Mariano

Citation203 A.2d 305, 152 Conn. 85
Opinion JudgeHOUSE, J.
Party NameSTATE of Connecticut v. Louisa MARIANO.
AttorneyRichard S. Weinstein, with whom was Jack Waltuch, Norwalk, for appellant (defendant)., John F. McGowan, Asst. State's Atty., with whom, on the brief, were Otto J. Saur, State's Atty., and Joseph T. Gormley, Jr., Asst. State's Atty., for appellee (state). Richard S. Weinstein, with whom was Jack ...
Judge PanelIn this opinion the other Judges concurred. Before KING, C J, MURPHY, ALCORN and COMLEY, JJ, and HOUSE, Acting justice
Case DateJuly 14, 1964
CourtSupreme Court of Connecticut

Page 305

203 A.2d 305 (Conn. 1964)

152 Conn. 85

STATE of Connecticut

v.

Louisa MARIANO.

Supreme Court of Errors of Connecticut.

July 14, 1964.

Page 306

[Copyrighted Material Omitted]

Page 307

[152 Conn. 87] Richard S. Weinstein, with whom was Jack Waltuch, Norwalk, for appellant (defendant).

John F. McGowan, Asst. State's Atty., with whom, on the brief, were Otto J. Saur, State's Atty., and Joseph T. Gormley, Jr., Asst. State's Atty., for appellee (state).

Before KING, C.J., MURPHY, ALCORN and COMLEY, JJ., and HOUSE, Acting justice.

Page 308

HOUSE, Acting Justice.

The defendant was found guilty by a jury of one count of policy playing on December 16, 1961, in violation of § 53-298 of the General Statutes. She was acquitted on five other counts alleging the same offense on prior days. She was arrested, shortly after noon on December 16, when a raiding party of state police officers, who were in possession of a search warrant and were accompanied by a Wilton constable, gained entrance to her home and [152 Conn. 88] seized papers representing bets made on that day. On March 1, 1962, prior to the trial, the defendant filed a motion that the court suppress the evidence obtained in the raid and order its return to the defendant on the ground of illegal search and seizure. After a full hearing and consideration of the written brief filed by the defendant, the court found that the motion to suppress was without merit, that the officers did have a valid search warrant and that the search and the seizure were not illegal or unreasonable. The motion to suppress was denied. Prior to her arraignment on May 17, 1962, the defendant moved ot argue orally the motion to suppress which had been denied. This motion was denied, as were subsequent motions for disclosure, for a bill of particulars, to quash the 'search or arrest' warrants and to strike and expunge. Also, two demurrers to the information were overruled. Then the trial proceeded. During the trial, the defendant sought, unsuccessfully, to exclude the evidence seized in the raid and again attempted to establish that it was procured by an illegal search and seizure, but the court refused to permit further inquiry into the circumstances surrounding the issuance and execution of the search warrant on the ground that the issue of the alleged illegal search and seizure had already been determined on the defendant's motion to suppress evidence. On this appeal, therefore, there were two findings, one on the issues raised to the court on the motion to suppress and the other on the issues raised by certain of the subsequent motions and on the trial to the jury. The defendant is not entitled to any significant correction in either finding.

The defendant's appeal raises two principal [152 Conn. 89] issues: (1) Was the defendant deprived of a fair opportunity to raise the issue of the legality of the search and seizure? (2) Was the execution of the warrant for the search and seizure legal?

I

The defendant raised the issue of the legality of the search by a motion to suppress which was filed and heard in advance of the trial. In this motion, the defendant expressly alleged that she was arrested without a valid search warrant and in violation of her rights under the fourth amendment to the federal constitution and under article first, § 8, of the Connecticut constitution. The motion further claimed: 'The arresting authorities broke in and entered the premises occupied by the defendant illegally and improperly and in violation of the defendant's rights as aforesaid.' By way of relief, the defendant requested an order of the court to suppress evidence of 'any article, object or thing, visual observation or statement obtained and secured illegally and improperly as aforesaid' and 'any testimony relating to or arising therefrom against her.' The federal and state constitutional provisions recited in the defendant's motion are substantially similar. Both prohibit unreasonable searches and seizures and the issuance of search warrants unless they are based on probable cause, are supported by oath and contain a reasonable description of the place to be searched and the things to be seized. The constitutionality of the search and seizure was thus clearly raised by the defendant for adjudication by the court.

Parenthetically, we note that at the time of the hearing on the defendant's motion there was no provision in our practice for a motion to suppress. [152 Conn. 90] See State v. Magnano, 97 Conn. 543, 547, 117 A. 550; State v. Reynolds, 101 Conn. 224, 235, 125 A. 636; State v. Carol, 120 Conn. 573, 574,

Page 309

181 A. 714. Prior to the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, an unreasonable search and seizure did not affect the admissibility of evidence in a state court. The Mapp decision abrogated our prior law that relevant evidence, although obtained by unreasonable search and seizure in violation of the federal constitution, was admissible in evidence in our state courts. State v. Fahy, 149 Conn. 577, 582, 183 A.2d 256, rev'd, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; State v. Collins, 150 Conn. 488, 489, 191 A.2d 253. As a consequence of that decision, our general Statutes now expressly provide for a motion to suppress. § 54-33f (effective July 2, 1963). It is unnecessary to decide whether a motion to suppress was permissible under our practice at the time of the hearing. The state made no objection to the defendant's election to proceed by such a motion, which is analogous to the federal practice under Rule 41(e) of the Federal Rules of Criminal Procedure. The trial court was justified in exercising its broad discretion to determine the order in which the issues should be tried and in hearing and deciding the case on the theory on which it was tried. Barber v. Baldwin, 135 Conn. 558, 565, 67 A.2d 1; Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546; Nearing v. Bridgeport, 137 Conn. 205, 206, 75 A.2d 505; Maltbie, Conn.App.Proc. § 41.

The defendant had a full hearing on her motion to suppress, lasting an entire day, during which seven witnesses were examined, ninety-three pages of transcript taken and the search warrant admitted as an exhibit. Counsel for the defendant called to [152 Conn. 91]...

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