State v. DeFusco

• Decision Date: 23 February 1993
• Docket Number: No. 14544,14544
• Citation: 620 A.2d 746,224 Conn. 627
• Parties: , 61 USLW 2578 STATE of Connecticut v. Paul DeFUSCO.
• Court: Connecticut Supreme Court

Page 746

620 A.2d 746

224 Conn. 627, 61 USLW 2578

STATE of Connecticut v. Paul DeFUSCO.

No. 14544.

Supreme Court of Connecticut.

Argued Nov. 3, 1992.

Decided Feb. 23, 1993.

John R. Donovan, Cromwell, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom were Lisa Riggione, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether article first, § 7, of the Connecticut constitution ¹ prohibits the police from conducting warrantless searches and seizures of garbage placed at the curb for collection. The state charged the defendant, Paul DeFusco, by substitute information with possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a), ² and the trial court accepted his conditional plea of nolo contendere. ³ The defendant appealed to the Appellate Court, which affirmed the judgment of conviction. State v. DeFusco, 27 Conn.App. 248, 606 A.2d 1 (1992). We subsequently granted the defendant's petition for certification to appeal. ⁴ State v. DeFusco, 222 Conn. 910, 608 A.2d 693 (1992). We affirm.

The relevant facts are as follows. On October 12, 1990, the Hamden police department executed a search warrant for 19 Building Brook Road, the defendant's residence. The warrant had been issued on the basis of an affidavit signed by two Hamden police officers experienced in narcotics investigations. The affidavit recited information provided by a confidential informant and described items obtained during several September, 1990 "garbage pulls" by Hamden police officers from garbage placed for collection at the curb in front of the defendant's house. ⁵ In the course of their search of the defendant's home, the police seized narcotics, drug paraphernalia, weapons and cash. The police arrested the defendant and charged him with various narcotics offenses.

The defendant moved to suppress the evidence seized from his home during the search. ⁶ He argued that the warrantless garbage pulls violated article first, § 7, of the Connecticut constitution and, therefore, that the items taken from the garbage should not have been relied on in the warrant affidavit. Without reference to the items taken from the garbage, the defendant claimed, the affidavit failed to establish probable cause. He also claimed, in the alternative, that the information contained in the affidavit was insufficient to establish probable cause even if the items obtained in the garbage pulls were properly considered. Relying on the defendant's diminished expectation of privacy in the garbage that he had voluntarily placed curbside, the trial court determined that the garbage pulls had been constitutionally valid. The trial court concluded, therefore, that the affidavit had properly included reference to items obtained in those garbage pulls and had established probable cause. Accordingly, the trial court denied the defendant's motion to suppress. The trial court subsequently accepted the defendant's plea of nolo contendere, and sentenced him to an eight year term of imprisonment, execution suspended after two years and probation for three years.

The defendant appealed his conviction to the Appellate Court; State v. DeFusco, supra, 27 Conn.App. 248, 606 A.2d 1; claiming that the trial court had improperly determined that (1) the garbage searches and seizures had not violated article first, § 7, of the Connecticut constitution, and (2) the affidavit, which properly included reference to the items seized in the garbage searches, had established probable cause. The Appellate Court affirmed.

In this appeal, the defendant reiterates the claims that he raised in the Appellate Court. Specifically, he argues that the Appellate Court improperly affirmed the trial court's determinations that (1) the search and seizure of the defendant's garbage had been permissible under article first, § 7, of the Connecticut constitution and (2) the affidavit, containing information obtained in the garbage searches, had established probable cause.

I

The defendant's principal claim is that the Hamden police department's warrantless searches and seizures of his garbage violated article first, § 7, of the Connecticut constitution. ⁷ We disagree.

Although the United States Supreme Court has expressly held that the fourth amendment to the federal constitution ⁸ does not protect against warrantless police searches and seizures of garbage placed at the curb for collection; California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 1627, 100 L.Ed.2d 30 (1988); we may find greater protection of individual rights under our state constitution than that provided by the federal constitution. "It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights...." (Internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992). Moreover, we have held that "[i]n the area of fundamental civil liberties--which includes all protections of the declaration of rights contained in article first of the Connecticut constitution--we sit as a court of last resort.... In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law." (Internal quotation marks omitted.) State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990). Recognizing that our state constitution "is an instrument of progress ... is intended to stand for a great length of time and should not be interpreted too narrowly or too literally"; (internal quotation marks omitted) State v. Oquendo, supra, 223 Conn. at 649, 613 A.2d 1300, we have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution. See, e.g., id., at 652, 613 A.2d 1300; State v. Marsala, supra, 216 Conn. at 171, 579 A.2d 58; State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988), and cases cited therein.

In this case, we must decide whether article first, § 7, of the Connecticut constitution affords greater protection than does federal law against warrantless searches of garbage placed at the curb for collection. For present purposes, we assume that our determination of whether garbage placed at the curb for collection falls within the protection of article first, § 7, is governed by the two-part standard that is used under the federal constitution and many other states' constitutions: (1) has the owner or custodian of the garbage manifested a subjective expectation of privacy with respect to it?; and (2) is that expectation one that society would consider reasonable? Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); see, e.g., California v. Greenwood, supra, 486 U.S. at 39, 108 S.Ct. at 1628; Commonwealth v. Pratt, 407 Mass. 647, 660, 555 N.E.2d 559 (1990); but see State v. Hempele, 120 N.J. 182, 198, 576 A.2d 793 (1990). Although we have never addressed the proper standard for determining the applicability of article first, § 7, neither party contests the appropriateness of using the Katz test in this case. Rather, the parties' primary disagreement concerns the second part of the standard, namely, whether an expectation of privacy in garbage placed at the curb for collection is one that Connecticut citizens would recognize as reasonable. ⁹

Because the focus of our inquiry, therefore, is the objective reasonableness of a person's expectation of privacy in garbage placed curbside for collection, ¹⁰ it is useful, at the outset, to identify several other issues, addressed by the parties, that are unnecessary to our decision. First, whether the defendant effected a property law abandonment of his garbage by placing it at the curb for collection is not determinative of the defendant's state constitutional claim. As we have recently held, property law abandonment and constitutional abandonment are independent concepts. See State v. Mooney, 218 Conn. 85, 106-107, 588 A.2d 145, cert. denied, --- U.S. ----, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991). ¹¹

Second, our respect for the sanctity of the home is not a factor in the circumstances of this case because article first, § 7, covers not only a person's home but also his "papers" and "possessions." Whether or not the garbage was located on the defendant's property when searched; see footnote 5, supra; therefore, is not dispositive of the constitutional protection afforded by § 7. Accordingly, the state's citation to several of our previous cases in which we emphasized that § 7 affords the highest protection against state invasion into the home; e.g., State v. Geisler, 222 Conn. 672, 687-90, 610 A.2d 1225 (1992); is unavailing insofar as the language of § 7 dispels the notion that § 7 protects only the home.

Third, our decision does not rely on the textual difference between the fourth amendment and article first, § 7. At oral argument before this court, the state argued that, because the fourth amendment protects, inter alia, "effects," whereas § 7 protects, inter alia, the narrower category of "possessions," the state constitution cannot be interpreted to provide more protection than does the federal constitution. Because this particular issue was neither briefed by the parties nor raised below, we decline to determine in this case the significance of the use of different...