State v. Cates

• Decision Date: 24 March 1987
• Citation: 522 A.2d 788,202 Conn. 615
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth CATES.

Page 788

522 A.2d 788

202 Conn. 615

STATE of Connecticut v. Kenneth CATES.

Supreme Court of Connecticut.

Argued Nov. 4, 1986.

Decided March 24, 1987.

Diane Polan, Special Public Defender, with whom, on the brief, was Margaret Olney, Law Student Intern, for the appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom were John M. Waddock, Asst. State's Atty., and, on the brief, Mitchell Goldklang, Mary K. Miller and Roseanne Wagner, Law Student Interns, for the appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, CALLAHAN and CELOTTO, JJ.

DANNEHY, Justice.

The defendant, Kenneth Cates, was found guilty by a jury of aiding and abetting a burglary in the third degree in violation of General Statutes §§ 53a-8 and 53a-103, ¹ and of larceny in the second degree in violation of General Statutes (Rev. to 1981) § 53a-123. ² On appeal, he contends (1) that the trial court erred in denying his motion to suppress certain evidence, (2) that the count of the information charging him with larceny lacked specificity and therefore did not give him adequate notice of the charge against him, and (3) that the evidence was insufficient to establish his guilt on either count beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On the morning of June 18, 1982, between the hours of 8 and 9:30, the Quinlan residence at 1082 Racebrook Road in Woodbridge was burglarized. The intruder or intruders apparently gained entry to the house by breaking a lock on a sliding glass door of the house. A white mink cape valued at $1200 was stolen from the premises.

Shortly before 9 on the same morning, a Woodbridge resident reported that he had observed two black men in a black Mercury automobile near Racebrook Road. The resident reported the vehicle registration as 595-AYX. Another Woodbridge resident observed two black men running across Racebrook Road shortly before 9:30 that morning. The males, who appeared to be in their late teens or early twenties, were carrying a white garment and were looking behind them. The defendant is a black male.

On December 14, 1982, members of the North Haven police department conducted a search of the defendant's apartment at 36 Derby Avenue, New Haven, pursuant to a warrant. The officers were searching for certain articles stolen during a burglary in North Haven on October 20, 1982. In the course of their search, the officers observed a white mink cape. After the search, the North Haven police department teletyped a report which listed some of the articles they had observed in the defendant's apartment. Upon reading the report, Detective Dennis Phipps of the Woodbridge police department contacted Detective Peter Hines of the North Haven police department to inquire about the white mink cape that had been seen at the defendant's residence. On December 20, 1982, Hines phoned the defendant to arrange a meeting between the defendant and the two detectives. It was agreed that the men would meet in front of the defendant's apartment building.

When the detectives arrived at the apartment building, they did not see the defendant and so they proceeded up to his apartment. Hines knocked at the door. After he identified himself, the defendant's girlfriend, Marjorie Marshall, who lived with the defendant, opened the door. One of the detectives asked whether there was a white mink cape in the apartment, explaining that such a cape had been stolen from a Woodbridge residence. Marshall replied that she had a white mink cape and that the defendant had given it to her as a gift sometime in August. The detectives asked if they could see the cape for identification purposes, and Marshall complied with the request. Upon examination of the cape, the detectives discovered that the design, labels and initials sewn into the cape matched the description of the missing Quinlan cape. When Marshall was informed of this, she gave the cape to the detectives stating that if it had been stolen, she did not want it. The evidence revealed that the detectives at no time actually entered the apartment during the conversation with Marshall. Evidence presented at trial also indicated that Marshall owned a charcoal gray Mercury automobile with registration 595-AXY, and that she and the defendant were the only two who drove the car.

I

The defendant's first claim on appeal is that the court erroneously denied his motion to suppress the mink cape obtained at the defendant's apartment. The basis of the motion was that the warrant authorizing the North Haven police to search the defendant's apartment on December 14, 1982, lacked probable cause. The defendant asserts that because the mink cape was a fruit of this illegal search, it must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

For the defendant to prevail on this claim, we must find not only that the warrant authorizing the December 14, 1982 search was invalid, but also that the seizure of the cape six days later was fatally tainted by the alleged illegality. The state asserts, and we agree, that even assuming the invalidity of the initial search, the voluntary handing over of the cape by Marshall dissipated any taint that might have been created by the warrant. Because of our holding, we need not consider whether the warrant authorizing the search on December 14, 1982, was in fact defective.

Under the exclusionary rule, evidence must be suppressed if it is found to be the "fruit" of prior police illegality. Wong Sun v. United States, supra, at 485, 83 S.Ct. at 416. All evidence is not, however, a "fruit of the poisonous tree" simply because it would not have been discovered but for the illegal action of law enforcement officials. Id., at 487-88, 83 S.Ct. at 417-18; see State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772, reh. denied, 466 U.S. 954, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984). "Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Wong Sun v. United States, supra, 371 U.S. at 488, 83 S.Ct. at 417, quoting Maguire, Evidence of Guilt (1959) p. 221.

In answering this question, we must first consider whether Marshall voluntarily consented to the seizure of the cape by the police on December 20, 1982. Whether consent has been given voluntarily is a question of fact to be determined by the totality of the circumstances. Dotson v. Warden, 175 Conn, 614, 619, 402 A.2d 790 (1978). The state bears the burden of establishing such consent. Id., at 618, 402 A.2d 790. The trial court in this case never reached the question of consent because it found no illegality on the part of the police in conducting the search of the defendant's apartment on December 14, 1982. Ordinarily, this would necessitate a remand on the question of consent. In this case, however, the parties do not dispute that Marshall voluntarily turned over the cape to the officers, and the record reveals that in doing so, she told the officers that if it was stolen, she did not want to have it. These undisputed facts "are tantamount to a finding of consent and must be so treated" even in the absence of an express finding by the trial court. State v. Hanna, 150 Conn. 457, 471, 191 A.2d 124 (1963).

The voluntary consent of Marshall is only a threshold requirement in determining whether the cape is a tainted fruit of the alleged prior illegality. In Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), the United States Supreme Court rejected the idea that a confession resulting from an illegal arrest is untainted simply because it is "voluntarily" given. It follows from Brown that the mere fact a consent to a search or seizure is voluntary does not necessarily remove the taint. See Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983); People v. Odom, 83 Ill.App.3d 1022, 39 Ill.Dec. 406, 404 N.Ed.2d 997 (1980); 4 W. LaFave, Search and Seizure--A Treatise on the Fourth Amendment (1987), § 11.4(d), p. 410. The Brown court explained that the factors to be considered in determining whether the taint has been dissipated include the temporal proximity of the illegal police action and the discovery of the evidence, "the presence of intervening circumstances," and "the purpose and flagrancy of the official misconduct." Brown v. Illinois, supra, 422 U.S. at 603-604, 95 S.Ct. at 2261-2262; see also State v. Villafane, supra. When we consider the present case in light of these factors, it is evident that any minimal taint stemming from the allegedly illegal search on December 14, 1982, was sufficiently purged.

Turning to the first factor, the temporal proximity of the two events, the facts indicate that six days elapsed between the initial search and the return to the defendant's apartment. Courts have frequently held that a purportedly voluntary consent given after an illegal arrest or search is nonetheless a tainted fruit when that consent was given very soon after the illegal police action. See, e.g., United States v. Recalde, 761 F.2d 1448, 1459 (10th Cir.1985) (consent given promptly after illegal arrest invalid); United States v. Gooding, 695 F.2d 78, 84 (4th Cir.1982) (consent occurring "within the same brief continuous encounter" as illegal seizure invalid); State v. Raheem, 464 So.2d 293, 297-98 (La.1985) (consent given within forty minutes of arrest invalid). These decisions imply that a consent given in very close temporal proximity to the official illegality is often a mere...