State v. Carbone

• Decision Date: 18 January 1977
• Citation: State v. Carbone, 172 Conn. 242, 374 A.2d 215 (Conn. 1977)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Peter CARBONE. STATE of Connecticut v. James CARBONE.

Page 215

374 A.2d 215

172 Conn. 242

STATE of Connecticut v.Peter CARBONE.

STATE of Connecticut v.James CARBONE.

Supreme Court of Connecticut.

Argued Oct. 19, 1976.

Decided Jan. 18, 1977.

Ira B. Grudberg, New Haven, for appellant(defendant Peter carbone).

Raymond W. Beckwith, Bridgeport, for appellant(defendantJames Carbone).

Joseph T. Gormley, Jr., Chief State's Atty., with whom was Robert E. Beach, Jr., Asst. State's Atty., for appellee(state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and MacDONALD, JJ.

LOISELLE, Associate Justice.

Prior appeals in these cases were decided by this court in the November term of 1974.¹The opinion does not appear in the Connecticut Reports.So that our recital of various facts from the finding shall not be interpreted as being, in any respect, different from those facts considered in the prior decision, the entire discussion relative to the finding of facts in the prior decision is included in the footnote.²

Many of the details recited in that opinion will not be repeated here.Briefly, the defendants, James Carbone and Peter Carbone, were convicted after a jury trial of four counts of larceny of personal property in excess of $2000 on four different dates between January 8, 1971, and February 20, 1971.James Carbone was the owner of Fairfield Scrap Metal Company, hereinafter referred to as Fairfield Scrap, in Fairfield, and Peter, his son, was an employee.Russell Scofield and Albert Edwards, two former employees of Carpenter Technology Corporation, hereinafter referred to as Carpenter, in Bridgeport, testified that they had stolen copper and nickel from their employer on various dates, transported it in rented trucks, and sold it to the defendants at Fairfield Scrap.Scofield stated he had signed a slip under the name of "John Parks."A slip bearing that signature was admitted into evidence.There was also evidence that Fairfield Scrap had sold copper and nickel to a New York scrap dealer on two occasions near the dates of thefts from Carpenter.

Before the trial, motions to suppress the slip were denied.³The slip had been seized while a search was being conducted on the premises of Fairfield Scrap by the police, acting under a warrant.It was not one of the items listed on the warrant.Alfred Constantino, an insurance investigator who accompanied the police, had inquired of Detective Robert J. Cafferty, who was in charge of the search party, whether he could search for sales slips.Constantino was told that he could not search under the warrant as the sales slips were not listed but was told that he could if he obtained consent.He thereafter asked Frank Carbone, another son of James and also an employee of Fairfield Scrap, whether he might look at sales slips.Frank relayed the request to James who replied, "Well, I see no reason why he shouldn't see them.Fine, let him have them."Frank got the slips and brought them out and placed them on a desk in the presence of James.Peter Popowski, an employee of Carpenter who also accompanied the police on this visit, joined Constantino in looking through the slips and discovered the "John Parks" slip.Frank, in the presence of James, was asked if the slip or a copy of it could be taken.Frank agreed and two photostatic copies were made.A receipt signed by Frank and James was made out.

The court ruled that the search was conducted by private citizens, and the fourth amendment thus was not applicable.This court disagreed, concluding that Popowski and Constantino were assisting the police and "thus, must come within the countenance of the fourth amendment."The lower court also concluded that James Carbone gave his voluntary consent to the search, that Peter lacked standing to object, and that consequently it did not need to consider the objections relating to the validity of the warrant.This court determined that Peter had standing, and that the lower court erred in failing to consider all the circumstances surrounding the purported consent, including any question of the validity of the warrant under which entry to the premises was gained.The judgments were set aside and the cases remanded for further proceedings.

On remand, the court found that the warrant was valid, the consent was voluntary, and that the consent of any of the Carbones, all of whom had a right to be on the premises, was effective as to the others.The judgments were reinstated, and the defendants have again appealed.

The defendants claim that the warrant was invalid because there was no probable cause to believe that the items listed therein would be found, on that date, at Fairfield Scrap.The affidavit attached to the warrant, which was issued on September 2, 1971, stated that Scofield and Edwards, who had been apprehended in July of 1971, had delivered metals and apparatus for moving metals (the items listed on the warrant) to Fairfield Scrap in January and February of that year.Noting the time lapse, this court stated in its prior opinion that "there was merit to the claim the warrant was stale."

Upon remand, the motions to suppress to which this court had addressed itself were resubmitted to Irving Levine, J., who had ruled on the motions previously.It was agreed by all parties that a new record need not be made and that the facts presented in the first hearing on the motions to suppress could provide a sufficient evidentiary basis for the new conclusions.Consequently, the finding of facts included in the record is controlling.

The motions to suppress and for the return of the slip were denied by the court.As there was no supplemental record made, we look to the memorandum of decision to determine the reasoning for the conclusion reached by the court.In re Application of Dodd, 132 Conn. 237, 240, 43 A.2d 224.In considering the list of items enumerated in the warrant, ⁴ in view of the previous opinion of this court that as a matter of law the search was not a private search, that Peter Carbone had standing to challenge the search, and that the claim of staleness of the warrant had merit, the court determined that the apparatus for handling metal (two chains and a tarpaulin) would have been useful in the defendants' business and was not ordinarily bought and sold in that business.The court concluded that the apparatus probably would have remained on the premises and the warrant was therefore not stale.

The court recognized that there must be probable cause that the items sought are on the premises when the warrant is issued.This principle was enunciated by the United States Supreme Court in a statutory, rather than a constitutional, context in Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260.The requirement, however, is believed to be one of constitutional proportions.SeeBastida v. Henderson, 487 F.2d 860(5th Cir.);United States v. Guinn, 454 F.2d 29(5th Cir.);State v. DeNegris, 153 Conn. 5, 9, 212 A.2d 894.It is also recognized that a time lapse between the observations on which the affidavit is based and the issuance of the warrant is an important consideration, but not necessarily controlling under all circumstances.United States v. Steeves, 525 F.2d 33, 38(8th Cir.).We previously did not find that the time lapse alone was so great as to invalidate the warrant as a matter of law.The motions to suppress were remanded to be considered in the light of our opinion and the case not remanded for a new trial absent the items seized under the warrant.If items of property are innocuous in themselves or not particularly incriminating and are likely to remain on the premises, that fact is an important factor to be considered in determining the staleness of a warrant.In United States v. Steeves, supra, it was held that a warrant issued to search for items used in a robbery three months earlier was stale as to the money and the bank's money bag, but not as to a gun, a ski mask, and clothing worn by the robber."The ski mask and the clothes were not incriminating in themselves, and apart from his prior felony record possession of the pistol was not unlawful in itself or particularly incriminating.Moreover, people who own pistols generally keep them at home or on their persons."Id., p. 38.See alsoUnited States v. Rahn, 511 F.2d 290(10th Cir.)(warrant to search for guns issued on information eighteen months old not stale when affidavit showed the defendant had said guns would appreciate in value if kept, had been seen making personal use of one gun, and search of records of area pawnshops revealed no sales by the defendant).On the court's analysis it cannot be held that the court erred in denying the motions to suppress.

Because the warrant is found valid, it can no longer be maintained that the slip was "the indirect product of an unlawful search," and thus excluded according to Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441.And because there was no "claim of lawful authority" to search for the sales slip, this case is distinguishable from Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1790, 20 L.Ed.2d 797, in which a woman "consented" to a general search after a policeman, without showing a warrant, announced, "I have a search warrant to search your house."Here the actual warrant was read to Peter and shown to James, and a specific separate request to search for the sales slip was made by one who had been informed that he could not search for the slip without express consent.

In determining whether the consent was voluntary, all the circumstances are to be considered.Schneckcloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854.It is a question of fact for the court.State v. Hanna, 150 Conn. 457, 471, 191 A.2d 124.The court, having found that Constantino was not on the premises unlawfully, considered the other circumstances surrounding the consent, and as stated in its memorandum of decision: "The...