Pickett v. Marcucci's Liquors

• Decision Date: 03 October 1930
• Citation: 151 A. 526,112 Conn. 169
• Parties: PICKETT, Pros. Atty., v. MARCUCCI'S LIQUORS.
• Court: Connecticut Supreme Court

151 A. 526

112 Conn. 169

PICKETT, Pros. Atty., v. MARCUCCI'S LIQUORS.

Supreme Court of Errors of Connecticut.

October 3, 1930

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Petition by Edwin S. Pickett, Prosecuting Attorney, against Antonio Marcucci's liquors, for an order for the destruction of intoxicating liquors and the containers thereof, alleged to have been illegally kept for purposes of sale and exchange. From a judgment for plaintiff, respondent appeals.

No error.

Louis Sperandeo, of New Haven, for appellant.

Edwin S. Pickett, of New Haven, and Harry B. Bradbury, of New Milford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES, J.

The requested changes in the finding are not of a character to require action by this court. Even if some of the findings are in a sense irrelevant as claimed, they can do the respondent no harm upon this appeal.

Marcucci with his family occupied the first floor and basement of a dwelling house in New Haven. The basement contained a kitchen, a large room with table and chairs, and a short passageway, at the end of which was a door which leads to a subcellar. At one end of the subcellar is a small room or closet partitioned, off and closed by a door which can be locked. The basement has a front and a rear entrance. Two officers of the New Haven police department, GoldricK and Dunn, upon information received by them that Marcucci was selling liquor, watched the premises for some days and were convinced by what they saw and heard that the illegal sale of liquor was in fact going on there. In the evening of November 23, 1929, they went to the premises again, and Goldrick knocked on the front door of the basement which was opened by a daughter of Marcucci to whom Goldrick disclosed his identity as a police officer and showed his badge and was admitted, the daughter calling to her father that it was the police. Proceeding toward the large room, Goldrick was met by Marcucci who asked him what he wanted and whether he had a search warrant. Goldrick replied that he had none and was there only to look over Marcucci's visitors and find out what they were doing there. Marcucci replied that they were all friends of his who were there for a social call. There were fourteen men in the room who were not members of Marcucci's family. In the meantime officer Dunn had gone to the front door on the upper floor and was admitted by another daughter of Marcucci's after making it known that he also was a police officer. He intercepted some of the fourteen men who had run up the stairs to the first floor, and Marcucci and all these men were put under arrest. Upon the table, when Goldrick entered, were two or three gallon jugs containing wine, several milk bottles containing wine or the dregs of wine, and some glasses with similar contents, and several of the men were more or less intoxicated. The officers had neither warrants for the arrest nor a search warrant. Observing that the door at the end of the passageway was open, they passed through it to the subcellar where they found twenty-five 50-gallon barrels of wine, two or three of which had faucets in them and were partially full, while the others were full and tightly bunged. Also observing the locked door of the smaller room, they asked Marcucci for the key, and, after protesting that he did not have it and had no control over that room, he produced a key and handed it to one of the officers, who unlocked the door and entered, finding eight more 50-gallon barrels of wine, one of which had a faucet, the others being tightly bunged. Calling another officer to remain in the premises, Goldrick and Dunn took all the men to the police office. Marcucci obtained bail and returned to the house some time after midnight. The officers obtained a truck and proceeded to remove the barrels of wine. Marcucci, who was then present, protested that the wine had cost him " a great deal of money" and offered them $500 to leave the wine where it was, but it was taken away and put in storage where it still remains. The removal was completed about 7 o'clock the following morning which was Sunday, November 24, 1029. In the late afternoon or early evening of that day, officer Goldrick telephoned to the city attorney's office for a search warrant, saying that he had already seized the wine and giving particulars. The search warrant was issued the following morning, November 25th, but was dated November 23d, and upon this officer Goldrick made a return of his seizure. The search warrant was never served upon Marcucci, nor was he ever summoned to appear to show cause why the wine should not be adjudged a nuisance, nor was notice ever given to Marcucci or any other person that the warrant had been issued. The court correctly held that the search warrant was without validity, and, in so far as proceedings were begun thereunder, they were of no effect. Marcucci was tried and convicted December 29, 1929, in the city court of New Haven for unlawfully owning and keeping wine and sentenced to pay a fine of $150. He appealed to the court of common pleas, but the appeal was withdrawn and he paid the fine. Upon the withdrawal of the appeal, the prosecuting attorney of the court of common pleas was notified that the wine had been seized and remained in the possession of the New Haven police department, and on January 21, 1930, he brought the present action for an order for the disposition of the wine and its containers. The court after hearing found the liquors and containers were kept with intent to violate the law, and ordered them destroyed, and the respondent appealed. The finding is that these were in fact a nuisance. General Statutes, § 2784.

One of the questions presented by the appeal is the legality of the seizure of the wine by the officers in the respondent's dwelling in the early morning of November 24, 1929.

The provisions as to search and seizure and due process of law, contained in the Fourth and Fifth Amendments to the Constitution of the United States, as the respondent properly recognizes, have their operations only upon those powers which are delegated to the federal government and do not limit the powers of the several states. State v. District Court, etc., 59 Mont. 600, 198 P. 362, And cases cited; Weeks v. United States, 232 U.S. 383, 389, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915 C, 1177; State v. Magnano, 97 Conn. 543, 546, 117 A. 550. However, the Constitution of Connecticut. art. 1, § 8, provides in almost identical language for the security of its people " in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." Searches and seizures without warrant are not prohibited, but only unreasonable ones, and the reasonableness or unreasonableness of the search or seizure is a question for the court to be determined from a consideration of all the circumstances involved. This is true under both constitutional provisions. Carroll v. United States. 267 U.S. 132, 146, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; United States v. Vatune (D. C. Cal.) 202 F. 497; Haile v. Gardner, 82 Fla. 355, 91 So. 376. It is beyond question that the officers had been enough to convince them that liquor had been and was being sold by the respondent in this dwelling, and no fair question can be made of the propriety or legality or their entry under the circumstances. Their entrance was peaceable and unopposed and the doors were opened to them. The entry was not procured by stealth, subterfuge, or any kind of deception. The respondent was himself present in the house, and these officers were there in the performance of their duty of enforcing the liquor laws of the state. After the entry it was doubly apparent to them that the law was then being violated in that house and further violations threatened, and it became their duty not only to arrest the participants in the offense but " to seize anything which was then being used to commit the offense and which might be made evidence of [his] guilty," and no warrant for arrest or search warrant was necessary. v. Maguano, 97 Conn. 543, 545, 117 A. 550; Smith v. Jerome, 47 Misc.Rep. 22, 93 N.Y.S. 202, 203; State v. Mullen, 63 Mont. 50, 207 P. 634; Bishop, Criminal Procedure (2d Ed.) vol. 1, p. 153.

It is clear that the jugs, bottles, and glasses on the table were " implements" of the offense, and, though the officers did not take them, they could legally have done so. The right to seize without a warrant the " implements" of the offense was coextensive with the right to arrest the perpetrators of the illegal acts. State v. Mullen, 63 Mont. 50, 207 P. 634. This right also extended to such other articles or things so used which could be there discovered by a search conducted in a reasonable and proper manner by the officer making the arrest, subject to the reasonable requirement of making effective a lawful arrest. Carroll v. United States, 267 U.S. 132, 158, 45 A. Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Haile v. Gardner. 82 Fla. 355. 91 So. 376, 378; Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B. 834, Ann.Cas. 1914C, 1177; Bishop, Criminal Procedure (2d Ed.) p. 153, § 211.

Several of the men stated to the officers, while they were in the room, that they had bought wine there from Marcucci; all the men were more or less intoxicated; the articles on the table were obviously then being used, and, further, the officers had on the night before seen through the window, that Marcucci was pouring wine and...