State v. Federici

• Decision Date: 04 September 1979
• Citation: 425 A.2d 916,179 Conn. 46
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Albert F. FEDERICI.

Page 916

425 A.2d 916

179 Conn. 46

STATE of Connecticut v. Albert F. FEDERICI.

Supreme Court of Connecticut.

Argued June 7, 1979.

Decided Sept. 4, 1979.

Francis T. Mandanici, Sp. Public Defender, with whom, on brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Chief Appellate Counsel, New Haven, with whom, on brief, were Austin J. McGuigan, Chief State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, LONGO, SPEZIALE and PETERS, JJ.

SPEZIALE, Associate Justice.

After a trial to the court, the defendant Albert F. Federici was found guilty of the crime of robbery in the first degree in violation of General Statutes § 53a-134(a)(2). The defendant has appealed from the judgment rendered.

Of the claims of error raised by the defendant, the following are dispositive of this case and involve the trial court's denials of the defendant's motions: (1) to suppress certain evidence introduced at trial which, he claimed, was seized without a warrant in violation of the fourth, fifth, sixth and fourteenth amendments to the United States constitution and of article first, §§ 7, 8 and 9 of the Connecticut constitution; and (2) to dismiss the charge against him because, he claimed, his warrantless arrest was not based on probable cause in violation of the fourth, fifth, sixth and fourteenth amendments to the United States constitution; and of article first, §§ 7, 8 and 9 of the Connecticut constitution, and of General Statutes § 6-49, now codified at General Statutes § 54-1f (Rev. to 1979).

The trial court's finding, which may stand without correction, ¹ reveals the following sequence of events relevant to the dispositive issues: On the evening of September 27, 1976, at about 9 p. m., a robbery occurred at a Wawa Food Store on the Post Road in Milford. Sharon Whitford and Edith Kopp were employees at the store on that night and saw the two men who allegedly committed the robbery. Shortly after the robbers left with the money Mrs. Whitford had given them from the cash register, she called the police to report the robbery. The police then issued a broadcast to patrolling officers in which a description was given of the robbers and their car.

The description was broadcast shortly after 9 p. m. and included the following data: An armed robbery had just occurred at the Wawa Food Store on the Post Road in Milford; a 1965 or 1966 gray Chevrolet was the suspect escape vehicle; two white males wearing large overcoat-type garments were involved; and a shotgun had been displayed during the robbery. This information was drawn from the report called in by the two witnesses immediately after the robbery. They had stated that, a short time prior to the robbery, they had seen a car parked "suspiciously" in the parking lot in front of the store, and believed that the vehicle was a 1965 or 1966 gray Chevrolet. The witnesses also described the two robbers. ²

Officer William Graham, who was patrolling on the 6 p. m. to 2 a. m. shift for the Milford police department on the night of the robbery, received the broadcast concerning the crime's occurrence at about 9:12 p. m. Within two or three minutes of receiving the broadcast, Graham spotted a vehicle that fit the description given. The car was at the intersection of New Haven Avenue and Gulf Street in Milford, which is approximately 2.5 miles from the Wawa Food Store. Officer Graham proceeded to follow the suspect vehicle because he noticed that it fit the general description given in the broadcast. There was nothing unusual in the way the vehicle was being driven, but Graham noticed after following the car for a short while that the rear marker plate was missing. The court found that this further aroused his suspicions, because his training and experience as a police officer had indicated to him that the removal of license plates is a common method used by criminals to avoid detection when fleeing from the scene of a crime. At that point, approximately eight-tenths of a mile after he began following the automobile, Officer Graham decided to stop it. He contacted headquarters to advise it of his decision, and stopped the car in back of a bank on Broad Street.

As Officer Graham approached the stopped automobile, two occupants got out of the car. The defendant Federici left from the driver's side. The officer told the defendant that he had no rear marker plate, to which the defendant replied that the vehicle had a temporary registration and that the cardboard marker had fallen off. Officer Graham asked to see the registration, and the defendant went back into the vehicle and began to look for it in the glove compartment. While the defendant was looking in the glove compartment, the officer shined his flashlight into the rear seat of the vehicle, where he saw outerwear-type garments. He also noticed a temporary license plate on the floor of the car in back of the driver's seat.

At this point during the stop, a second police officer, Michael Skirkanich, arrived on the scene. Officer Graham told him to stay with the passenger from the car. Officer Graham then informed the defendant that he, his car, and his passenger fit the description broadcast concerning an incident, and he requested the defendant to place his hands on the roof of the vehicle. The court also found, however, that the vehicle driven by the defendant was a brown 1966 Chevrolet, and that the two occupants were both white males, but that the passenger was a white male of Hispanic descent. As Officer Graham began to frisk the defendant, a third officer, Lester Lawrence, came on the scene. As Officer Graham was patting down the defendant, Officer Skirkanich was frisking the other suspect. Officer Graham asked the third officer to check under the garments on the rear seat for weapons, which he did. Officer Lawrence removed two rifle-type weapons from underneath the garments. The defendant and his passenger were told that they were under formal arrest when the weapons had been found in the defendant's vehicle. After the garments were removed from the vehicle, Officer Graham made a radio check with police headquarters to obtain a fuller description of the clothing worn by the robbers. He learned that the robbers had been wearing army-type garments, one of which had a private's insignia, an inverted "V," on the sleeves. After the defendant and his companion had been taken from the scene, the interior of the vehicle was searched. The police found eighty-five dollars underneath a floor mat.

The dispositive claims of error involve the validity of the search and seizure of the garments, weapons, and money in the defendant's car, and the validity of the arrest of the defendant. It should be noted before addressing these claims that counsel for the defendant conceded at oral argument the propriety of the police's initial stop of his car prior to the search, seizure and arrest, and their right to detain and "frisk" him. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (validating stop on less than probable cause); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("stop and frisk" of person without probable cause justified where reasonable for police officer to fear that close range suspect is armed); State v. Acklin, 171 Conn. 105, 368 A.2d 212 (1976) (citing Adams and Terry with approval). Therefore, we do not treat the constitutional propriety of the police behavior that occurred prior to the searches and seizures and the arrest.

I

The defendant claims that the court erred in denying his motion to suppress because the search of his car and the seizure of the garments, the weapons, and the money were conducted in violation of state and federal constitutional protections against warrantless searches and seizures. We agree. In invoking these protections, the defendant claims that the sequence of events leading up to the search and seizure of the items in his car did not present an exception to the rule that searches and seizures of private property must be conducted both on reasonable grounds and pursuant to a properly issued search warrant.

As recently summarized by the United States Supreme Court, the fourth amendment, applicable to the states through the fourteenth amendment (and, by analogy, our own constitutional provision, article first, § 7), "protects the privacy and security of persons in two important ways. First, it guarantees '(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' In addition, this Court has interpreted the amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the warrant clause. See, e. g., Mincey v. Arizona, 437 U.S. 385, 390 (98 S.Ct. 2408, 2412, 57 L.Ed.2d 290) (1978); United States v. Chadwick, 433 U.S. 1, 9 (97 S.Ct. 2476, 2481, 53 L.Ed.2d 538) (1977); United States v. United States District Court, 407 U.S. 297, 317 (92 S.Ct. 2125, 2136, 32 L.Ed.2d 752) (1972); Katz v. United States, 389 U.S. 347, 357 (88 S.Ct. 507, 514, 19 L.Ed.2d 576) (1967); Agnello v. United States, 269 U.S. 20, 33 (46 S.Ct. 4, 6, 70 L.Ed. 145) (1925). In the ordinary case therefore, a search of private property must be both reasonable and performed pursuant to a properly issued search warrant." (Emphasis added.) Arkansas v. Sanders, 442 U.S. 753, 757-58, 99 S.Ct. 2586, 2589-2590, 61 L.Ed.2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

As to the search of the defendant's automobile and the seizure of the items therein, therefore, the police...