Dotson v. Somers

• Decision Date: 08 August 1978
• Citation: 402 A.2d 790,175 Conn. 614
• Court: Connecticut Supreme Court
• Parties: Hayward DOTSON v. Warden, Connecticut Correctional Institution, SOMERS.

Page 790

402 A.2d 790

175 Conn. 614

Hayward DOTSON v. Warden, Connecticut Correctional Institution, SOMERS.

Supreme Court of Connecticut.

Argued June 9, 1978.

Decided Aug. 8, 1978.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for the appellant (plaintiff).

Arnold M. Schwolsky, Asst. State's Atty., with whom, on the brief, were George D. Stoughton, State's Atty., and Richard F. Banbury, Chief Asst. State's Atty., for the appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

PETERS, Justice.

The plaintiff appeals from a judgment dismissing his petition for a writ of habeas corpus. The plaintiff, Hayward S. Dotson, was convicted in 1971, after a jury trial, on three counts of burglary, rape and indecent assault in a case arising out of the rape of an elderly woman in her West Hartford apartment. The plaintiff was given a total effective sentence of ten to seventeen years, which he is currently serving. Although the plaintiff attempted to appeal his conviction and sentence, no appeal was taken because his then special public defender found no basis for appeal and was allowed to withdraw as attorney for the plaintiff. In 1976, the plaintiff filed the present writ alleging that he is being illegally held because of defects in the search warrant which preceded his arrest on a bench warrant, and because of inadequate representation of blacks in the panel from which the jury which found him guilty was chosen. The Superior Court considered the petition for the writ on briefs submitted by the parties, together with transcripts from the earlier trial including transcripts of a timely motion to suppress and dismiss. The court ruled against the plaintiff on all of his claims and dismissed the writ. This court, upon a request for certification, granted certification limited to the questions concerning the search warrant.

On this appeal, the plaintiff raises three issues concerning the legality of the search warrant which led to the bench warrant under which he was ultimately arrested and convicted. One issue is an attack on findings made, and findings refused, by the trial court. A second issue is the legality of a warrantless search of the premises where the plaintiff was residing at the time of the crime. A third issue is the accuracy of representations made in the process of the subsequent procurement of the search warrant. For reasons stated hereafter in the opinion, we need address only the first two of these issues.

I

The attack on the findings made by the trial court raises a number of questions. Two of these findings involve interpretations and inferences from testimony before the court, and are therefore not subject to correction. State v. Warren, 169 Conn. 207, 212, 363 A.2d 91 (1975); New Haven v. United Illuminating Co., 168 Conn. 478, 483, 362 A.2d 785 (1975). One concerns the court's finding that there was consent to the warrantless search, and will be considered in part II of this opinion.

The request to add material facts allegedly admitted or undisputed comes perilously close to the kind of undiscriminating broadside which this court has repeatedly deplored. See, e. g., State v. Miselis, 164 Conn. 110, 114, 318 A.2d 102 (1972). The request fails, in most instances, to establish the materiality of the facts sought to be added; in others, there is an issue of credibility despite the absence of direct contradictory evidence. There is, on this showing, no basis for departure from our well-established rule that findings will not be amended for the addition of facts which would serve no useful purpose or directly affect the ultimate facts upon which the judgment depends. State v. White, 169 Conn. 223, 242, 363 A.2d 143 (1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399; State v. Warren, supra, 169 Conn. 212, 363 A.2d 91.

II

The propriety of the search without warrant turns on evaluation of the following facts established by the findings of the trial court: At the time of the commission of the crime for which he was convicted, Hayward Dotson was living in a house in Rocky Hill, which was owned by another person. He had been living there since 1966 or 1967. Dotson had his own room on the second floor of the house; Dotson's room could be locked by a chain lock from the inside of the door, and Dotson had the right to exercise full control over the contents and the occupants of his room. The facts raise two related issues of law: did the owner of the Rocky Hill house consent to the search of her house; did the owner have authority to consent to the search of the plaintiff's room in her house.

On May 13, 1971, within a week of the commission of the crime, a police officer telephoned the owner of the Rocky Hill house, hereinafter, the owner, asking to see her. At that time, Dotson was a suspect, and the police visit was a part of the ongoing investigation of his possible culpability in the case. Three police officers arrived at the Rocky Hill house early in the afternoon of the 13th of May. The owner met the officers on her front steps and advised them that she preferred to talk to them outside the house. She stated as the reason for her reluctance to permit their entry that the house was messy and untidy. The officers countered with a statement that if she did not permit an inspection, they could get a search warrant and return, and that it might be embarrassing for her, or words to that effect. The three officers then entered the house, questioned the owner about Dotson's whereabouts and clothing at the time of the crime and searched Dotson's room and bathroom. Dotson was not present and did not consent to the search of his room. Nothing was taken from the house at the time of this search, but later that same afternoon a search warrant was procured and served. Pursuant to this search warrant, the police seized a number of items, including a windbreaker jacket, a pair of dungarees, a piece of towel found in the dungarees pocket, and some keys.

Provisions in the constitution of the United States and the constitution of the state of Connecticut equally and conjointly prohibit unreasonable warrantless searches of private property. U.S.Const. amends. IV and XIV, § 1, Conn.Const. art. I, § 7. A search without a warrant is not unreasonable if a person with authority to do so has freely and voluntarily consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consent is an issue upon which the state bears the burden of proof. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788,20 L.Ed.2d 797 (1968). As this court said in State v. Hanna, 150 Conn. 457, 470, 191 A.2d 124 (1963), "(a)lthough it is presumed, until the contrary is indicated, that a police officer has acted lawfully . . . this does not raise a concomitant presumption of consent to a search and seizure." Consent requires an affirmative finding of voluntariness; State v. Hanna, supra, 471, 191 A.2d 131, and is not established by a mere acquiescence to a claim of lawful authority. Bumper v. North Carolina,supra, 391 U.S. 548-49, 88 S.Ct. 1788.

The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, is "a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, supra, 412 U.S. 227, 93 S.Ct. 2048. As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence. State v. Hanna, supra, 150 Conn. 471-72, 191 A.2d 124. Such findings must be upheld unless they are legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case. Velsmid v. Nelson, 175 Conn. 221, 225, 397 A.2d 113 (1978); McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 323-24, 321 A.2d 456 (1973); F. & AK, Inc. v. Sleeper, 161 Conn. 505, 510, 289 A.2d 905 (1971). In this case, the trial court found specifically that the owner permitted the police to search her house, including the plaintiff's bedroom, and concluded, concomitantly, that she had given the requisite legal consent to the search, both on her own behalf and on behalf of Dotson. The issue before us is whether that finding, and those conclusions, were in error. Review of findings of fact of this nature is particularly precarious, since a conclusion about consent necessarily involves an inquiry into a peculiarly elusive subject, the putative consenter's state of mind, on which the evidence, as in this case, is frequently scant and conflicting. Although this consideration supports acceptance of the finding of the trial court, ¹ that deference is in part offset here by the fact that the hearing below was a hearing, without testimony, on briefs and prior records. The prior records contain all of the proceedings at the time of the original trial and the motions relating thereto, which produced the testimony herein relied upon but contained no express contemporaneous finding of consent.

Examination of the subordinate findings of fact relating to the owner's own consent demonstrates how barren a record the state has been able to build to satisfy its burden of proof that the warrantless search was lawful. The owner did not ultimately expressly forbid the police officers' entry, nor did she physically block their way. She was neither in custody nor a suspect. The conversations occurred in a familiar place, her own home. After entry had been gained, she cooperated with the police officers in answering questions and demonstrating objects. Against these factors must be noted the owner's initial stated objection to the entry of the officers, and the very presence of three police officers on indeterminate official business. See United States v....