588 A.2d 145 (Conn. 1991), 13737, State v. Mooney

Docket Nº:13737.
Citation:588 A.2d 145, 218 Conn. 85
Opinion Judge:BORDEN, J.
Party Name:STATE of Connecticut v. David MOONEY.
Attorney:Emanuel Margolis and Bruce D. Koffsky, Special Public Defenders, with whom, on brief, was Edward V. O'Hanlan, New Canaan, for appellant (defendant)., Judith Rossi, Asst. State's Atty., with whom, on brief, were Michael Dearington, State's Atty., Roland Fasano, Former Asst. State's Atty., and Mich...
Judge Panel:In this opinion PETERS, C.J., and SHEA and GLASS, JJ., concurred. Before PETERS, CJ, and SHEA, CALLAHAN, GLASS, COVELLO, BORDEN and SANTANIELLO, JJ
Case Date:March 19, 1991
Court:Supreme Court of Connecticut

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588 A.2d 145 (Conn. 1991)

218 Conn. 85

STATE of Connecticut



No. 13737.

Supreme Court of Connecticut.

March 19, 1991

Argued Oct. 2, 1990.

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Emanuel Margolis and Bruce D. Koffsky, Special Public Defenders, with whom, on brief, was Edward V. O'Hanlan, New Canaan, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on brief, were Michael Dearington, State's Atty., Roland Fasano, Former Asst. State's Atty., and Michael Granston, Legal Intern, for appellee (State).


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[218 Conn. 86] BORDEN, Associate Justice.

The dispositive issue of this appeal is whether, under the fourth amendment to the United States constitution, the defendant had a reasonable expectation of privacy in certain closed containers located in the area under a highway bridge abutment where he was living. The defendant appeals from the judgment of conviction, after a jury trial, of felony murder[218 Conn. 87] in violation of General Statutes § 53a-54c, 2 and robbery in the first degree in violation of General Statutes § 53a-134(a)(1). 3 He claims that the trial court improperly: (1) denied his motion to suppress certain evidence gathered as a result of a search and seizure of certain personal property located under the bridge abutment where he had been living; (2) denied his motion to dismiss for lack of a speedy trial; (3) admitted into evidence certain testimony about a larceny he allegedly committed subsequent to the murder and robbery; and (4) denied him access to the mental health records of a state's witness. We conclude that the trial court should have granted the motion to suppress, and we reverse the judgment.

The jury could reasonably have found the following facts. The defendant owed money to Mark Allen 4 for [218 Conn. 88] drugs. On July 30, 1987, the defendant, who was driving the car of the victim, a male homosexual, took Allen to the victim's condominium in Branford in order to pay his debt to Allen by stealing the victim's video cassette recorder and other items. The defendant told Allen that he and the victim had a homosexual relationship, and that Allen should pretend that he was interested in engaging in sex with the victim and the defendant. At the condominium, the three men had drinks and thereafter went upstairs, where the defendant and the victim took a shower together. After kissing and fondling the victim, the defendant began beating him. Allen, who had declined to become involved in the sexual activity, pulled the defendant off the victim, who was bleeding from his nose and mouth and had stopped moving. Allen then left the bedroom to search for items to steal. The defendant remained in the bedroom, where he strangled the victim with a cord. Allen left the condominium with a quantity of coins, the victim's video cassette recorder, and some other items. He stole the victim's car, leaving the defendant in the condominium with the victim.

On July 31, 1987, the victim's body was discovered on the floor of his bedroom, which was in disarray, with bloodstains in various locations throughout the room. The victim had been beaten, and had been strangled to death with a ligature.

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On August 5, 1987, the police arrested Allen in connection with the murder and robbery. Allen gave several statements in which, although he denied involvement in the victim's death, he admitted being in the victim's condominium that day and stealing his video cassette recorder, his car, and other items. In his statements, Allen implicated the defendant in the murder of the victim. On the basis of this information, the police [218 Conn. 89] secured an arrest warrant for the defendant and arrested him on the night of August 5, 1987.


The defendant claims that the trial court improperly denied his motion to suppress certain evidence that the Branford police had seized from an area under a highway bridge abutment where the defendant had been living at the time of his arrest. This claim, divided into two parts, is that: (1) under the fourth amendment to the United States constitution, 5 the police violated his rights by invading his "home" under the bridge abutment without a warrant; and (2) the police violated those rights when, without a warrant, they seized his belongings, including a closed duffel bag and a closed cardboard box containing personal items, and searched them. We conclude that, on the facts presented here, the defendant had a reasonable expectation of privacy in the contents of his duffel bag and cardboard box. Accordingly, the warrantless search of his duffel bag and cardboard box by the police violated his fourth amendment rights and the evidence yielded by that search should have been suppressed.

The evidence produced at the hearing on the defendant's motion to suppress disclosed the following facts. [218 Conn. 90] Shortly after midnight on the morning of August 6, 1987, while the defendant was in custody, Detective Anthony Morro of the Branford police department met the defendant's girlfriend, Linda Spencer, at Friendly's Restaurant in West Haven, where she was employed. At Morro's request, Spencer told him that she would take him to the place where the defendant had been living at the time of the murder. Spencer directed Morro to a bridge abutment underneath the highway overpass by the State Street entrance ramp to route I-91 in New Haven. The abutment was separated from the entrance ramp roadway by a steep embankment that was covered by crushed stone and heavy underbrush. The state department of transportation owns the property involved.

Morro climbed up the embankment and, using a flashlight to illuminate the area, saw several items, including a blanket used as a mattress, a rolled-up sleeping bag, a closed cardboard box, a suitcase, a small closed duffel bag, and paper trash bearing the Friendly's Restaurant insignia. The defendant, using the metal and cement beams of the highway support structure as shelves, had placed all of his belongings on the beams, with the exception of the duffel bag, the blanket, and the trash, which were left on the ground. Morro opened the duffel bag and found therein a paper bag containing a large quantity of quarters. He did not open the other items at that time. Morro then called the Branford police department evidence officer to the scene. They photographed and tagged all of the items and brought them to the police department, where they were opened and

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"inventoried" by Sergeant William Carroll. 6 The cardboard box contained a size 38 belt, [218 Conn. 91] and the duffel bag contained approximately $700 in coins, mostly quarters, a pair of white pants stained with what was later determined to be blood, and several pieces of jewelry. 7

The defendant asserted ownership of all the items taken by the police and their contents, except for the belt, which he claimed to have acquired when it had been left on a park bench by a woman with whom he had been drinking. Although the defendant had been living under the bridge abutment for about one month, he previously had been living in an apartment on Chapel Street in New Haven until the second or third week in June, 1987, when he moved out after an argument with his roommate. For approximately two weeks thereafter he lived beside a fence near the Trumbull Street entrance to I-91. He left that location when another homeless man started camping nearby, and moved to the State Street abutment area. He was still living under the bridge when he was arrested on August 5, 1987. While he was living there he had no other home.

[218 Conn. 92] During the one month period of time that the defendant lived there, he was the only person occupying that space. Although he would leave the area every day, he would secure his belongings so that they could not be seen from the bottom of the embankment because he was worried about theft. At night, he slept there behind a bush. The defendant knew that the area was state property and that there was no reason why someone else could not enter or live in the area where he was living. In fact, the defendant acknowledged that, while he was living there, a highway worker clearing brush came upon him.

The trial court found that the defendant had manifested a subjective expectation of privacy in the items seized, but, because of their location, that his expectation was not reasonable. It also found, moreover, that "it would be reasonable to assume that someone could look at the items and assume that everything had been abandoned" and that the defendant had no reasonable expectation of privacy in the contents of the items because "[t]hey were left there for anyone to observe and for anyone to open." The court accordingly denied the motion to suppress.

At trial, several items found underneath the bridge abutment were presented to connect the defendant to the robbery and murder of the victim. The state introduced the white bloodstained pants and the size 38 belt into evidence. The pants linked the defendant directly to the death of the victim because Allen identified them as those worn by the defendant during the crimes. Evidence was also presented that the victim had a size 38 waist, thereby connecting the belt found in the defendant's cardboard box to the victim. The coins, the jewelry, the dagger and the bayonet; see footnote 6, supra; were introduced into evidence in order to link the defendant with a subsequent larceny from Charles C, another homosexual, who testified that the defendant

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[218 Conn. 93] had stolen the items from him six days after the murder and robbery of the victim. The evidence regarding that larceny forms the basis of the defendant's third claim in this appeal.


The defendant first makes the...

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