State v. Anonymous (1973-6)
| Decision Date | 01 October 1972 |
| Docket Number | No. 278,278 |
| Citation | 30 Conn.Supp. 211,309 A.2d 135 |
| Court | Connecticut Superior Court |
| Parties | STATE of Connecticut v. ANONYMOUS (1973-6). * . SADEN, Judge. Identical motions to dismiss the informations for want of in personam jurisdiction have been filed by the same counsel in two cases. The motions belong to what might be best described § the 'kitchen sink' variety of legal motions which wildly throws in practically all the constitutional concepts one can name, whether even remotely applicable or not, plus a few other concepts dubbed 'constitutional' by counsel although they fail to meet such a standard, in the obvious hope that somewhere, somehow, counsel may hit upon something significant. This is aptly described as 'tossing in everything, including the kitchen sink.' I The case against one defendant, henceforth referred to as A, contains four counts: (1) possession of heroin with intent to sell in violation of Public Acts 1972,§ 24(a) (General Statutes § 19-480); (2) acting with intent that conduct constituting a crime be performed, having agreed with B, C, and other known and unknown persons to engage in the crime of possession of heroin with intent to sell or dispense in violation of General Statutes § 53a-48; (3) interfering with a search in violation of § 54-33d; (4) destruction of property in violation of § 54-33e. The case against the other defendant, B, contains two counts: (1) the same as the first count against A; (2) the same as the second count against A except to substitute B's name for A's. The motions when summarized allege: (1) The Superior Court 'secretly' issued a bench warrant without defense counsel's knowledge or presence and with a higher bond than that fixed previously in the Circuit Court; (2) the bench warrant was issued on the same affidavit as the Circuit Court's search warrant leading to the initial arrest in that court; (3) the search warrant was invalid because (a) the last page of the affidavit in its support was not signed under oath, (b) it was a general warrant, and (c) the affidavit did not |
Identical motions to dismiss the informations for want of in personam jurisdiction have been filed by the same counsel in two cases. The motions belong to what might be best described § the 'kitchen sink' variety of legal motions which wildly throws in practically all the constitutional concepts one can name, whether even remotely applicable or not, plus a few other concepts dubbed 'constitutional' by counsel although they fail to meet such a standard, in the obvious hope that somewhere, somehow, counsel may hit upon something significant. This is aptly described as 'tossing in everything, including the kitchen sink.'
The case against one defendant, henceforth referred to as A, contains four counts: (1) possession of heroin with intent to sell in violation of Public Acts 1972, No. 278 § 24(a) (General Statutes § 19-480); (2) acting with intent that conduct constituting a crime be performed, having agreed with B, C, and other known and unknown persons to engage in the crime of possession of heroin with intent to sell or dispense in violation of General Statutes § 53a-48; (3) interfering with a search in violation of § 54-33d; (4) destruction of property in violation of § 54-33e.
The case against the other defendant, B, contains two counts: (1) the same as the first count against A; (2) the same as the second count against A except to substitute B's name for A's.
The motions when summarized allege: (1) The Superior Court 'secretly' issued a bench warrant without defense counsel's knowledge or presence and with a higher bond than that fixed previously in the Circuit Court; (2) the bench warrant was issued on the same affidavit as the Circuit Court's search warrant leading to the initial arrest in that court; (3) the search warrant was invalid because (a) the last page of the affidavit in its support was not signed under oath, (b) it was a general warrant, and (c) the affidavit did not establish probable cause; (4) critical allegations of the affidavit are false; (5) the defendants' constitutional rights under the fifth, sixth, seventh, eighth, ninth and fourteenth amendments to the federal constitution have been violated because of said defects, thus 'infecting' the prosecution in the Superior Court; (6) the defendants' rights have been violated as to 'security' with regard to unreasonable search and seizure, improper and unsupported warrants to search unspecified places and persons or things to be seized, a fair trial, double jeopardy, information on the nature and cause of accusation, confrontation by witnesses, assistance of counsel, excessive bail, cruel and unusual punishment, a public hearing on all critical aspects of the case, a hearing in probable cause, due process of law, and equal protection of laws.
Defense counsel concludes with the bland statement that the 'relief . . . requested is reasonable.' He then submits his own personal affidavit in which he asserts that paragraphs 1, 2 and 6 of his motions are true (out of a total of twelve paragraphs alleged) and proceeds to narrate information which he has personally obtained through his investigation of the charges and which he believes to be true, controverting statements made in the affidavit supporting the search warrant which was in turn attached to the affidavit supporting the bench warrant in each case. Defense counsel seeks to offer the evidence thus derived from his investigation to support the motions to dismiss.
The defendants claim in essence that this court does not have in personam jurisdiction over them because the arrest and bench warrants are the fruits of an illegal search. They are therefore seeking to attack the search warrants on which they contend the arrests were based but are doing so in the form of motions to dismiss. What is more, their attack is not limited to the content sufficiency of the affidavits on which the search and seizure warrants were issued but extends to the failure of the form of signature on the last page of the affidavit accompanying the application for a search warrant, and also to the facts stated by the affiant in that affidavit, leading to the arrest. In other words the defendants appear to concede that on their face the affidavits in question, if true, were sufficient to justify the search and seizure warrants and the arrest warrants that followed, but they dispute the veracity of the fact statements in the affidavits. In their brief they request the right to offer evidence on these fact questions, challenging the affidavits.
The affidavit attached to the bench warrant was sworn to by a police officer with three and one-half years' experience who was a member of the narcotics squad. In the affidavit he narrated the events of the day when he and other members of the squad, under a search warrant issued that day by the Circuit Court, proceeded to the premises named therein to search those premises and the person of B. Through a kitchen window they observed three persons, the two defendants and C, sitting in the living room 'cutting up heroin,' i.e. spooning a white powder into glassine bags. C sifted the contents of a large glassine bag through a strainer. The officers knocked on the front door, stating that they were police and had a search warrant. A forced entry had to be made, and there follows a detailed description of the actions of the two defendants and C in their efforts to avoid detection and to destroy evidence. The search produced a large quantity of glassine bags, rubber bands, and white powder, some of which was later tested to be heroin and quinine. The affidavit also contained a statement concerning recent past involvements of B and C with heroin, resulting in Circuit Court arrests. It concludes by asserting that the affiant has probable cause to believe that the crimes now alleged in the informations against B and A were committed.
In paragraph 2 of the affidavit affixed to the bench warrant, reference is made to a search warrant issued by the Circuit Court which is incorporated as part of the bench warrant affidavit. The Circuit Court search warrant recites that two police officers, prior to the issuance of the search warrant, met with a reliable informant who in the past had supplied information leading to approximately twenty arrests, seizures or convictions. The officers had known him for about one year. He supplied them with information concerning B, who was active as a heroin dealer at a stated address. The informant knew this from having been on the premises on many occasions and having observed many glassine bags containing a white powder. He was last on B's premises that very day just before meeting the officers. He saw others enter B's premises and purchase from him some of these glassine bags for cash. The affidavit further discloses the checking done by the affiants on police records of B and utility and housing records for his street address. They also conducted a daylight surveillance of the premises and observed habitual narcotics users who were known to them and had been arrested for narcotics violations. All of these users entered the premises and left in ten minutes. The same surveillance and observations were made three days later. After two more days the officers met again with their informant who stated that he had been on B's premises the previous night and had observed a male make a purchase of glassine bags as previously described. On the next day the affiants met again with their informant who said he had been on B's premises that day and had once more observed others coming into the premises and purchasing glassine bags with white powder in them from B.
The Circuit Court search warrant is directed to search the person of B; to enter his premises; and to search and seize certain narcotic specifically listed in the search warrant. 1 It is signed by a judge, and the oaths of the affiants are taken by him. The search warrant affidavit itself consists of three pages of typing. At the end of page two, the affiants signed their names and the judge took their oaths, himself signing his name to that effect after printed words stating 'JURAT subscribed and sworn to before me . . ..' Just above the column of three signatures (the two affiants' and the judge's) appear the words 'See continued page.' This obviously refers to the third page, which is headed 'continued' and runs right along, completing a sentence at the end of page two. This third page also contains the same three signatures as appear on page two, but since page three was originally a blank page without any form printing on it, on each signature line before each signature appeared the typed words 'Signed at . . ..' More properly the language preceding the judge's signature should have been the 'JURAT' which appears before his name at the bottom of page two. We will comment on this later.
We should also note that the affiant swearing to the bench warrant affidavit was one of the affiants on the Circuit Court search warrant. Thus the personal knowledge he had of the entire matter, as represented by both affidavits, was offered to the Superior Court with the application for the bench warrant.
It would be difficult to conceive of an affidavit more detailed and complete than the Circuit Court affidavit or the bench warrant affidavit following it. Their contents gave abundant reason to the Circuit Court and the Superior Court to issue the search and arrest warrants respectively. The defendants now make a broadside attack on these affidavits, undoubtedly recognizing that if they stand and the evidence is later substantially produced at trial as set forth in these papers, the defendants are doomed.
Not only is the 'kitchen sink' motion filed here by counsel reprehensible because it asserts all kinds of claims, constitutional and otherwise, many of which even...
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