State v. Anonymous (1984-1)

Citation40 Conn.Supp. 20,480 A.2d 600
CourtSuperior Court of Connecticut
Decision Date07 August 1984
PartiesSTATE of Connecticut v. ANONYMOUS (1984-1) * .

BARNETT, Judge.

The four defendants in these related cases are charged with either possession of narcotics or possession of narcotics with intent to sell. All defendants have moved to suppress the use in evidence of the narcotics and drug paraphernalia that were seized during a warrant-authorized search of the apartment occupied by H and L.

Two independent grounds are asserted as the basis for suppression. First the defendants contend that the warrant authorizing the search and seizure was "stale" because of a delay in time between its issuance and execution. The second claim is that the manner in which the search was conducted negated the authority of the warrant. The second claim is predicated upon an alleged violation of the so-called "knock and announce" rule. According to the defendants, an establishment of either of their claims 1 makes the search an unconstitutional 2 one and precludes admission of its fruits.

The state, in addition to denying the validity of those claims, also maintains that M and P lack standing to challenge the search.

On October 7, 1983, a warrant was issued authorizing a search of the apartment occupied by H and L and also a search of the persons of H, L and one G. Underlying the warrant was an affidavit in which facts were alleged to support conclusions of probable cause that the persons named therein were conducting illicit activities involving the possession and sale of narcotics at the specified premises. 3 One week later, on October 14, 1983, at approximately 10:30 a.m., the warrant was executed.

The H-L apartment is one of two apartments on the second floor of a building in a housing project. The front door to the apartment is a thin metal one opening inward and containing a peephole. To the knowledge of the police, this door was the only means of entry other than sliding glass doors leading from the dining room to a balcony. Shortly before the warrant was executed, Detective R learned from a confidential informant how the door opened and that H's "kid" as well as H and L lived in the apartment.

Five members of the police department were present to execute the warrant. In addition to the leader, Detective R, there were Detective E, and three uniformed officers, policemen D and S and policewoman P. To accomplish their entry the police carried a sledgehammer and an instrument known as a halegan tool to pry open the door. And to protect against detection from within, Detective R covered the peephole with a piece of scotch tape.

While standing outside the door, the police heard the voices of a woman and child from inside the apartment and also the sounds of cartoons on the television set. Detective R, after consulting with Detective E, decided to gain entry by using a ruse. R testified that he pointed to policewoman P, a former undercover agent, and that she knew what to do.

Detective R then knocked on the door. A female voice asked who was there. Policewoman P responded by saying "Nancy" and asking if she could use the telephone or the telephone book.

At first the voice from within said, "Go away." The knocking and the "Nancy" routine were repeated three additional times. When the door was finally opened somewhere between a crack and twelve inches by P who was babysitting for H's young daughter, the police, led by Officer S and Detective R started to rush in with guns drawn. R recalled that S yelled "police" and he stated that he probably screamed, "We have a search warrant," because he was carrying the original warrant and copies. Before the police effected their entry, P tried unsuccessfully to shut the door.

After entering the police found P and the little girl in the living room. In one of the bedrooms on the second level, H 4 and L were located. In another bedroom, the police discovered M who was an overnight guest. After all four defendants and the child were assembled in the living room, the search warrant was displayed and copies were distributed.

At the hearing, the police stated their awareness of the "knock and announce" rule and admitted that they did not comply with its provisions. Two reasons, however, were advanced for justification or excuse. One such reason was that narcotics and drug paraphernalia could be disposed of quite easily upon an announcement by the police or during a breaking of the door. Detective R stated that when the object of a search is narcotics, the police allow between five and ten seconds before proceeding to break in. R, himself, had never waited longer than one minute.

The other reason was that the safety of the child might have been jeopardized if the door had to be broken down or pried open. Detective E testified that 80 percent of search warrants are executed through forcible entries. According to E, children are sometimes placed behind closed doors to delay entries so that, in the interim, a destruction of narcotics can be accomplished. In E's fourteen years of service, however, he recalled only one instance where a child had been struck by a door. And E, himself, had never been on a raid where a child was injured.

General Statutes § 54-33c recites that search warrants "shall be executed within ten days." The statutory language is a legislative determination that a ten day period satisfies the traditional requirement that search warrants must be executed with "reasonable promptness, diligence or dispatch." State v. Edwards, 98 Wis.2d 367, 375, 297 N.W.2d 12 (1980). The warrant at issue was executed within seven days. 5 A statutory time period does not mean, however, that all judicial control is abrogated. Conceivably, there may be instances where an execution within the legislatively prescribed time could result in an unreasonable and hence an unconstitutional search.

Most courts in considering "staleness" in the execution of a warrant have viewed the issue in terms of probable cause. The precise question to be asked is whether the probable cause recited in the affidavit still existed when the warrant was executed. Donaldson v. State, 46 Md.App. 521, 528-29, 420 A.2d 281 (1980); State v. Edwards, supra, 98 Wis.2d 376, 297 N.W.2d 12. In plainer terms, the question is whether it is still likely that the items sought will be found in the place to be searched. State v. Yaritz, 287 N.W.2d 13, 16 (Minn.1979).

The answer to this question depends upon variables such as the nature and location of the items and, most importantly, upon the alleged continuation of criminal activity. Donaldson v. State, supra, 46 Md.App. 530, 420 A.2d 281; State v. Yaritz, supra, 16-17. A decision as to whether probable cause continued to exist or had been dissipated by the time the warrant was executed is to be made independently of any justification for the delay or the conduct of the officers which may have caused the delay. State v. Edwards, supra, 98 Wis.2d 373, 297 N.W.2d 12. A defendant has the burden to prove dissipation by a preponderance of the evidence. State v. Edwards, supra, 376, 297 N.W.2d 12.

Another approach to the issue concentrates upon the prejudice sustained because of the delay in execution. Under this view, the justification for the delay and the reasons for the officers' conduct are material factors. Courts adhering to this view hold that a defendant must be given the opportunity to show that unfair prejudice resulted from the officers' conduct. An example would be that the evidence would not have been discovered if the search had been conducted more expeditiously. United States v. Bradley, 428 F.2d 1013, 1016 (5th Cir.1970); United States v. McClard, 333 F.Supp. 158, 166 (E.D.Ark.1971); see also State v. Edwards, supra, 98 Wis.2d 375, 297 N.W.2d 12.

In the present case, it is unnecessary to speculate as to which of the two views would be favored by our appellate courts. 6 Under either view, the defendants here have failed to sustain their burden of proof. Earlier, this memorandum noted that the affidavit supplied probable cause for the issuance of the warrant. 7 The affidavit also presented facts to support a conclusion that the illegal activities detailed therein were of a continuing nature. Moreover, a trafficking in illegal drugs is ordinarily considered to be a regenerating activity. Donaldson v. State, supra, 46 Md.App. 530, 420 A.2d 281.

No evidence was introduced in this proceeding to rebut the continued existence of probable cause or to show that quicker action by the police would have produced a different result. On the facts of this case, the court, therefore, has no difficulty in holding that the search warrant was valid when it was executed within the statutory ten day period.

A considerably more complex question is presented by the defendants' claim that the evidence must be suppressed because the police failed to comply with the "knock and announce" rule.

Initially the defendants contended that the failure of the officers to announce their presence and purpose was ipso facto a violation of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. This contention is inaccurate. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), Justice Jackson, in writing for the court, stated clearly that whether a lack of prior announcement would be equated with a constitutional violation depended upon the circumstances involved. A similar ruling has come from our former Appellate Session. State v. Anonymous (1977-5), 34 Conn.Sup. 531, 535, 375 A.2d 417 (1977).

From decisions like Ker v. California, supra, and State v. Anonymous (1977-5), supra, it is obvious that any given case requires a particularized inquiry. The inquiry, however, has a definitive starting point. In State v. Mariano, 152 Conn. 85, 94, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962 (1965), our Supreme...

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