State v. Cobuzzi

Decision Date25 June 1971
Citation161 Conn. 371,288 A.2d 439
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Saverio COBUZZI.

Charles G. Karanian, New Britain, with whom, on the brief, were Daniel J. Hagearty, New Britain, and Lewis Platt, Newington, for the appellant (defendant).

George D. Stoughton, Chief Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for the appellee (state).

Before HOUSE, THIM, RYAN, SHAPIRO and LOISELLE, * JJ.

LOISELLE, Associate Justice.

In a trial to the court the defendant was found guilty of breaking and entering with criminal intent in violation of § 53-76 of the General Statutes, larceny in violation of § 53-63 and possession of burglar's tools in the night in violation of § 53-71.

The defendant has assigned error in certain rulings of the trial court on evidence, in the finding and in the court's conclusion that on all the evidence the defendant was guilty beyond a reasonable doubt of the crimes charged.

The defendant's first claim is that the trial court erred in denying his motion to suppress evidence of a bag, a pair of pliers, a pair of gloves and some coins and in admitting these items and testimony concerning them into evidence. The gravamen of the defendant's claim is that the evidence in question was obtained as a result of an illegal search and seizure in violation of his federal and state constitutional rights. The defendant assigns as error the court's conclusion that the evidence was seized as the result of a valid search incident to a lawful arrest. It is well established that 'a properly conducted search incidental to a lawful arrest is not illegal even though it is made without a warrant.' State v. Collins, 150 Conn. 488, 492, 191 A.2d 253, 255; State v. Adinolfi, 157 Conn. 222, 226, 253 A.2d 34. Thus, if the evidence was obtained as the result of a valid search and seizure incident to a lawful arrest, as the court concluded, the evidence was not illegally obtained and was admissible. Draper v. United States, 358 U.S. 307, 314, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653; State v. DelVecchio, 149 Conn. 567, 573, 182 A.2d 402.

The facts found by the trial court relevant to the issue of whether the evidence was obtained as the result of a valid search and seizure incidental to a lawful arrest may be summarized as follows. Early in the morning of May 13, 1967, Officer Edward C. Hart, Jr., of the Hartford police observed the defendant operating a motor vehicle at Main and Church Streets near the Hartford Stamp and Coin Company, which is located at 56 Church Street in the city of Hartford. He next saw the defendant's vehicle at Trumbull and Asylum Streets. He followed it west on Asylum Street to High Street and stopped at High Street while the defendant drove on. A few minutes later Hart again saw the defendant's vehicle at High and Asylum Streets, whereupon he followed it and stopped it at Trumbull and Pearl Streets at about 3:45 a.m., which was about fifteen minutes after he first saw the vehicle. The neighborhood in question is a commercial area that is ordinarily deserted at that hour. Hart, acting pursuant to General Statutes § 14-217, asked for and received the defendant's operator's license and registration. The defendant told Hart that he had finished work at 1 a.m., that he was out on personal business and that he was going to Rocky Hill. While talking to the defendant Hart saw, in plain view on the floor of the back seat, an open brown paper bag containing pennies, a pair of black gloves and a pair of pliers. Hart did not detain the defendant and proceeded to check the doors of various commercial establishments. In so doing he found that the Hartford Stamp and Coin Company had been broken into by the breaking of a glass panel in the door and that the cash register inside had been pried open.

The court further found that at 4:30 o'clock on the same morning Officer Bernard Sullivan of the Hartford police stopped the defendant's vehicle at the Capitol area exit from route 91 southbound into Hartford. Sullivan was acting on information based on the observations of Officer Hart which gave him probable cause to believe that the defendant had committed or was committing a felony. Sullivan had been informed by police radio that a coin store had been broken into and that a policeman had seen some coins in the defendant's vehicle. When Sullivan stopped the defendant, the defendant was driving and had a passenger. Sullivan ordered both to leave the vehicle. He asked the defendant if he could search the vehicle. The defendant told him to go ahead and said he had nothing to hide. Sullivan observed a brown paper bag containing pliers, black leather gloves and some change made up mostly of pennies. Sullivan did not inform the defendant that he was under arrest although the defendant was placed under actual restraint and the defendant submitted to the custody of the officer. At that time, Sullivan did not intend to inform the defendant that he was under arrest unless the defendant resisted, leaving this disclosure to Hart, the investigating officer.

The defendant has assigned error in the trial court's finding of certain of the aforementioned facts. Since, however, the defendant has not briefed these assignments, they must be treated as abandoned. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 77, 239 A.2d 500; Bartlett v. Flaherty, 155 Conn. 203, 205, 230 A.2d 436.

The first question is whether, in light of the facts found, the arrest, to which it is claimed the search was incident, was a legal arrest. A search cannot be sustained as incident to an arrest unless the arrest itself was valid. See State v. Spellman, 153 Conn. 65, 70, 212 A.2d 413. The validity of the arrest is to be determined by the application of § 6-49 of the General Statutes, which authorizes a police officer to arrest without a warrant 'any person who such officer has reasonable grounds to believe has committed or is committing a felony.' '(R)easonable grounds to believe' is to be equated with probable cause. Henry v. United States, 361 U.S. 98, 100, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; State v. Wilson, 153 Conn. 39, 41, 212 A.2d 75. 'In dealing with probable cause * * *, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879; State v. Wilson, supra. In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327; State v. Sweeney, 157 Conn. 485, 488, 255 A.2d 622; State v. Towles, 155 Conn. 516, 520, 235 A.2d 639; State v. Wilson, supra, 153 Conn. 42, 212 A.2d 75. Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Brinegar v. United States, supra; Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; State v. Towles, supra; State v. Wilson, supra; State v. Elliott, 153 Conn. 147, 152, 215 A.2d 108.

Officer Hart was legally justified in stopping the defendant's vehicle after noting the circuitous route the vehicle was taking in a commercial area which was ordinarily deserted in the early morning. Under these circumstances he was entitled to make a license and registration check pursuant to the provisions of § 14-217. During the process of checking these documents he saw an open bag containing change, gloves and pliers on the floor of the back seat. His observation of these items did not constitute an unlawful search and seizure inasmuch as they were in plain view. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067; Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726; State v. Smith, 157 Conn. 351, 355, 254 A.2d 447; State v. Adinolfi, 157 Conn. 222, 224, 253 A.2d 34. When Officer Hart discovered that a coin store in the area had been broken into, he had 'reasonable grounds to believe' that the defendant had committed a felony. It is true that Officer Sullivan, the arresting officer, did not have first-hand knowledge of the aforementioned facts; but the existence of probable cause is to be determined on the basis of the collective information of the law enforcement organization as a whole and not solely on that of the arresting officer. Williams v. United States, 113 U.S.App.D.C. 371, 308 F.2d 326; State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75; see also Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. Thus, when Officer Sullivan stopped the defendant's vehicle, probable cause for arrest existed.

There remains the question whether the search was contemporaneous with the arrest. A valid search incident to an arrest must be contemporaneous with the arrest. Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777; State v. Hassett, 155 Conn. 225, 232, 230 A.2d 553. 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' Preston v. United States, supra. After Officer Sullivan stopped the defendant's vehicle, he ordered the defendant out of the car and placed him under actual restraint and the defendant submitted to his custody. Although the defendant was not formally arrested until later that morning, when he was taken to police headquarters and booked, it is unnecessary under the...

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