State v. Allen

• Decision Date: 20 July 1967
• Citation: 155 Conn. 385,232 A.2d 315
• Parties: STATE of Connecticut v. Charlotte ALLEN.
• Court: Connecticut Supreme Court

Page 315

232 A.2d 315

155 Conn. 385

STATE of Connecticut v. Charlotte ALLEN.

Supreme Court of Connecticut.

July 20, 1967.

John M. Brannelly, Sp. Public Defender, with whom, on the brief, were Andrew D. Cretella, Bridgeport, and Harold A. Bochino, Trumbull, for appellant (defendant).

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

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

ALCORN, Associate Justice.

The defendant was charged, in an information filed by the state's attorney, with the crime of having heroin, a narcotic drug, under her control in violation of § 19-246 of the General Statutes. Before trial, she made a motion 'that the evidence of narcotics obtained by the police on December 4, 1964, be suppressed by reason of the lack of existence of a proper search and seizure warrant'. The motion was not phrased, as it should have been, in the manner required by 54-33f of the General Statutes. ¹ The statute clearly specifies the five reasons on which a motion to suppress may be grounded and directs the court to hear evidence on any issue of fact necessary to a decision of the ground raised. The defendant's allegation would appear to assert ground (1) under the statute. As will later appear, it actually sought to invoke ground (4), but the allegation made utterly failed to inform the court of the real basis for the motion. The court (Leipner, J.) held a hearing on the motion, however, at which the defendant was permitted to offer evidence in support of her actual claim, following which it denied the motion. The defendant entered a plea of not guilty and elected trial by the court. At the conclusion of the trial, the court (MacDonald, J.) adjudged her guilty and imposed a sentence of imprisonment. In this appeal error is assigned on matters arising during the trial and also on the denial of the motion to suppress.

There are two findings, one relating to the hearing on the motion to suppress and the other relating to the trial. The defendant assigns error in the substance of both findings, but no correction of the subordinate facts or conclusions in either finding can be made which would be of advantage to her. The assignments of error which are basic to the appeal attack the denial of the motion to suppress, certain rulings on evidence during the trial, and the trial court's conclusions that there was no entrapment and that the defendant was guilty of the crime charged beyond a reasonable doubt.

I

The errors assigned in the denial of the motion to suppress amount in substance to an attack on a search warrant obtained by the police. The grounds urged were that the sworn application on the basis of which the warrant was issued was defective, that the warrant itself was altered after it was issued, and that a search conducted by the police without a warrant was illegal. The defendant had the burden of proof on the motion. State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962. From the evidence introduced at the hearing on the motion the court found as follows: Arthur J. Davis was under arrest by the Bridgeport police. In a conversation with the police, Davis told them that he had gone to New York with the defendant on previous occasions and indicated a willingness to go there with her again to purchase narcotics. Following this conversation, and on the same day, a police captain applied to the Circuit Court for a warrant to search the defendant's house. Later that same day, the officer 'called the Circuit Court and had two automobiles * * * added to the application for search warrant and the warrant itself before the warrant was completely made out.' The warrant was received by the police the next morning, and, on that same morning, Davis drove the defendant, at her request, to New York, with the Bridgeport police following in another car. Mrs. Davis and another woman rode with Davis and the defendant. The defendant purchased narcotics in New York with money which she had brought with her. The police who were following the Davis car lost sight of it in New York and returned to Bridgeport. All of the occupants of the Davis car except Mrs. Davis indulged in some of the narcotics in New York, and then the group returned to Bridgeport. En route, Mrs. Davis telephoned from Darien to the Bridgeport police to advise them that the group was on its way to the defendant's home. On arriving in Bridgeport, however, Davis drove, instead, to his own home because the group had been warned by a third party that the police were waiting at the defendant's home, and they had decided not to go there. The narcotics which the defendant had purchased were taken into the Davis home, which the group entered and where they spent about a half hour. While they were there, Mrs. Davis, from a telephone in another part of the building, notified the police of their whereabouts. After the half-hour stay in the Davis home, the three women returned to the Davis car, which was parked about fifty yards away. The police, who were waiting nearby with the search warrant, went to the Davis car on receiving word that the defendant was in it, ordered her out of the car and found a brown bag containing several glassine envelopes on the floor of the car where the woman who was with the defendant and Mrs. Davis had dropped it.

The search warrant and the application for it were offered in evidence. The application, which was sworn to before a judge of the Circuit Court by an assistant prosecuting attorney of that court on November 3, 1964, set forth, as the grounds for its issuance: 'Reliable information received by Captain John J. Carroll, Special Services Division, Bridgeport Police Department, from an informant who has given reliable information in the past, and from surveillance by members of the Special Services Division, Bridgeport Police Department.' The warrant itself, after reciting the quoted language as the grounds for its issuance, commanded a search of 'first floor (left), premises located at 982 Wordin Avenue, Bridgeport, Connecticut, and occupied by Charlotte Allen. Also Conn.Reg. 570-134 Also Conn.Reg. 867- 578.' The items to be searched for were narcotics and allied paraphernalia.

Number 652 of the 1963 Public Acts, which governed the issuance of the warrant, provided, in substance (§§ 1, 3) that it should issue only on an affidavit sworn to by a state's attorney, a prosecuting attorney or any two credible persons before a judge of the Superior Court or the Circuit Court 'establishing the grounds for issuing the warrant'. The statute then provided (§ 3) that the warrant should issue '(i)f the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist'. The statute took its present form in No. 439 of the 1965 Public Acts (General Statutes § 54-33a), the provisions of which contain the language quoted.

The language of the statute indicates the purpose intended to be served by the affidavit. That purpose it to enable the issuing authority to weigh the persuasiveness of the facts relied upon by the affiant or complainant and, from them, to determine whether the necessary probable cause exists for the issuance of the warrant. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503; State v. DeNegris, 153 Conn. 5, 8, 212 A.2d 894. The issuing authority must determine for himself the persuasiveness of the facts relied on to show probable cause. Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723. Consequently, the recital of the underlying circumstances contained in the affidavit or sworn complaint must be sufficient to permit the issuing authority to perform this independent function. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684; State v. DeNegris, supra. Neither the recital that the affiant had information from a reliable informant nor the statement that there had been surveillance without sufficient indication of the result of that surveillance gave the judge of the Circuit Court adequate information to determine for himself whether probable cause for the issuance of the warrant existed. Aguilar v. State of Texas, supra, 378 U.S. 109, 115, 84 S.Ct. 1509; State v. DeNegris, supra, 153 Conn. 9, 212 A.2d 894. It necessarily follows that the search warrant, having been issued on insufficient grounds, was illegal. This conclusion makes inconsequential the defendant's further claim, which she failed to prove to the court's satisfaction, that the warrant was altered after it was signed.

While no point is made of the fact by the defendant, we are constrained to notice the inept language of the warrant itself. A directive to search 'Also Conn.Reg. 570-134 Also Conn.Reg. 867-578' can hardly be considered as identifying objects of search with the precision required in a search warrant.

The Superior Court does not appear to have reached a conclusion as to the legality of the search warrant. It concluded only that the police 'obtained a search warrant', the affidavit for which 'was based on personal surveillance of the defendant's home by members of the Special Service Division of the Bridgeport Police Department and by information supplied by a previously reliable informant. Arthur Davis.' The court went on to conclude, however, that, at the time of the search, the police had reasonable grounds to believe that the defendant 'was committing or had just committed a felony' and that they were acting on the speedy information of others. It then denied the motion to suppress. Whether this issue was within the ambit of the motion to suppress as it was phrased may be open to question. The parties and the court have treated it as included, however, and, since this is so, we shall do likewise.

The crime with which the defendant is charged is a felony. General Statutes...