Hing Wan Wong v. Liquor Control Commission

• Decision Date: 14 July 1970
• Citation: 160 Conn. 1,273 A.2d 709
• Parties: HING WAN WONG v. LIQUOR CONTROL COMMISSION.
• Court: Connecticut Supreme Court

Page 709

273 A.2d 709

160 Conn. 1

HING WAN WONG v. LIQUOR CONTROL COMMISSION.

Supreme Court of Connecticut.

July 14, 1970.

Stephen J. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellant (defendant).

Alexander A. Goldfarb, Hartford, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

ALCORN, Chief Justice.

Under date of January 19, 1968, and after a hearing, the liquor control commission notified the plaintiff that his restaurant liquor permit had been suspended for a period of ten days. The reason for the suspension was unsuitability of person by reason of a violation of § 30-91 of the General Statutes by permitting 'the sale or the dispensing or consumption or the presence in glasses or other receptacles suitable to permit the consumption of liquor by an individual of alcoholic liquor during prohibited hours.' The plaintiff appealed from the suspension to the Court of Common Pleas, which sustained the appeal. The liquor control commission has appealed from the judgment of the court.

The essential facts are not disputed. The plaintiff is the owner-operator of a restaurant in Hartford. A sergeant of the Hartford police department received a complaint of after-hours drinking at the plaintiff's restaurant and, on Saturday, July 14, 1967, with two other detectives, went to the plaintiff's restaurant at about 1:37 a.m. This was after the hour of closing fixed by § 30-91 of the General Statutes. ¹ From the street outside, the sergeant focused his flashlight through a window and saw three people seated at a table with glasses before them. The police knocked on the door of the restaurant and were admitted by the plaintiff. As they entered the restaurant, the people at the table removed the glasses from the table and placed them on the floor. The sergeant picked up one of the glasses which contained an amber-colored liquid which smelled of alcohol. The plaintiff was arrested for a violation of § 30-91 which is a misdemeanor. General Statutes § 30-113. The contents of the glass were analyzed by the laboratory division of the state health department and were certified by both the chief of the toxicological services section and another toxicologist as containing 19.3 percent alcohol by volume. The alcoholic liquor with which § 30-91 is concerned is a liquid or solid containing more than one-half of 1 percent of alcohol by volume. General Statutes § 30-1(2). The plaintiff was presented in the Circuit Court charged with a violation of § 30-91. He moved to suppress any and all evidence obtained by the police at the restaurant on the ground that it was obtained through an illegal search. The misdemeanor charge against him was nolled by the prosecutor on November 10, 1967, on the ground that the 'search would be subject to question'. On January 18, 1968, a hearing was held by the liquor control commission, after due notice, at which the plaintiff was required to show why his restaurant liquor permit should not be revoked or suspended for a violation of § 30-91. At that hearing the police sergeant testified that he went to the restaurant with the two other detectives, and described what he saw through the window, the entry into the restaurant and the confiscation of the glass and its contents as already related. He also testified that the glass and its contents were taken to the state laboratory for analysis later that morning. The state laboratory report was introduced in evidence over the objection that it was hearsay and that it had been declared to be inadmissible in a court of competent jurisdiction.

The claim now made is that the report from the state laboratory concerning the analysis of the contents of the glass could not properly be considered as evidence because the glass and its contents had been obtained in an illegal search and the report of the analysis from the state health department laboratory was hearsay. The transcript of the proceedings in the Circuit Court does not support the objection made before the liquor control commission that the Circuit Court, in the proceedings there, had ruled that the evidence was inadmissible. Even if a determination by the Circuit Court in the proceedings before it could furnish a valid basis for objecting to the admission of the evidence before the liquor control commission, a point which we need not decide, there was no factual basis for that objection. In the Circuit Court the prosecutor nolle prossed the case because the 'search would be subject to question'. The only ruling by the court was that '(t)he record may reflect a nolle by the prosecutor'. The nolle determined nothing except that it ended the particular proceeding. It was not a bar to a subsequent trial of the plaintiff for the same offense. See v. Gosselin, 133 Conn. 158, 161, 48 A.2d 560; State v. Garvey, 42 Conn. 232, 233. On the appeal from the decision of the liquor control commission, however, the Court of Common Pleas determined that the evidence concerning the glass and its contents was illegally obtained and therefore was not admissible. Consequently, that court concluded that there was no evidence from which it could find a violation of § 30-91 and it sustained the plaintiff's appeal. Section 30-60 of the General Statutes provides that on an appeal from the liquor control commission 'a transcript of the hearing shall be certified to the court by the commission and the court shall admit so much thereof as is legally competent, relevant and material to the issue within the rules of evidence'. Section 30-8, which deals with hearings before the commission, contains no requirement limiting the commission to a consideration of evidence which would be admissible in a court of law. The apparent design of §§ 30-8 and 30-60 is to leave to the reviewing court the problem of extracting from the record certified to it the legally admissible evidence pertinent to the issue on the appeal. Consequently the ruling of the Court of Common Pleas concerning the admissibility of the evidence presents the issue which is before us.

Neither the United States constitution nor the Connecticut constitution forbids searches and seizures. The prohibition is against unreasonable searches and seizures. State v. Collins, 150 Conn. 488, 492, 191 A.2d 253. Nor does a search take place when officers merely see what is placed before them in full view. Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726. We believe it a misnomer to describe what occurred in this case as an illegal search and seizure. The officers observed from the street through a window, with the aid of a flashlight, persons sitting at a table near the bar with glasses before them. The officers knocked on the door and were freely admitted by the plaintiff. They took possession of a glass which they had seen from the street and which contained what smelled like alcoholic liquor. Quite aside from the approach taken in Collins and Ker, however, we find decisive support for the actions of the police in this case in Colonnade Catering Corporation v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60, in which the United States Supreme Court sustained the right of federal agents, without a search warrant, to break open a locked liquor storeroom over the protest of the owner.

The nature of the liquor business is such that "the police power to regulate and control it runs broad and deep". Aminti v. Liquor Control Commission, 144 Conn. 550, 552, 135 A.2d 595, 596. 'The states may absolutely prohibit the manufacture, transportation, sale or possession of such liquors within their borders or they may permit these activities under conditions prescribed by their legislatures. To these ends they can adopt such measures as they may deem reasonably appropriate'. Pierce v. Albanese, 144 Conn. 241, 248, 129 A.2d 606, 611. Section 30-106 of the General Statutes provides, in...