State v. Gallagher

• Decision Date: 13 September 1983
• Citation: 465 A.2d 323,191 Conn. 433
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard GALLAGHER. STATE of Connecticut v. Carol GALLAGHER.

Page 323

465 A.2d 323

191 Conn. 433

STATE of Connecticut v. Richard GALLAGHER.

STATE of Connecticut v. Carol GALLAGHER.

Supreme Court of Connecticut.

Argued June 8, 1983.

Decided Sept. 13, 1983.

William J. Curran, Bridgeport, for appellants (defendant in each case).

Carl Schuman, Asst. State's Atty., with whom, on brief, were John J. Kelly, State's Atty., and Susan A. Moch, Asst. State's Atty., for appellee (state in each case).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

PETERS, Associate Justice.

The dispositive issue in these appeals ¹ is whether the common law privilege to resist an unlawful warrantless entry by the police into one's home remains a defense to the misdemeanor of interfering with a police officer. After a jury trial, the defendants Richard and Carol Gallagher were found guilty of interfering with an officer, in violation of General Statutes § 53a-167a. ² From the judgments of conviction the defendants appealed to the Appellate Session of the Superior Court. The Appellate Session found no error; State v. Gallagher, 38 Conn.Sup. 364, 447 A.2d 1175 (1982); and we granted certification.

The jury reasonably might have found the following facts. The defendants, who are husband and wife, had lived for several years in a house in a residential neighborhood of Milford. On December 28, 1979, at approximately 11 a.m., their neighbor, Angela Jerolman, was in her yard when she observed the defendant Richard Gallagher looking at her. He walked to his front porch, turned to her and called "Did you miss anything, you nosey bitch, you?" Jerolman thereupon entered her house, called the police, and asked them to arrest Gallagher. Although on several previous occasions Jerolman had complained to the police of the Gallaghers' playing of loud music and of the Gallagher children riding their bicycles in her driveway, this was the first time that she had sought Gallagher's arrest.

Shortly thereafter officer Michael Hanlon arrived alone at Jerolman's house and obtained her version of the preceding events, including her reiterated and adamant request that Gallagher be arrested. Officer Hanlon agreed to speak to Gallagher and told Jerolman that in the event the problem could not be resolved, Gallagher might be arrested. Before proceeding to the Gallagher's residence, officer Hanlon radioed from his squad car for backup assistance on the possible arrest.

Then, without obtaining a warrant, officer Hanlon knocked or rang at the front entrance of the Gallagher home. At this point, no more than one hour had elapsed since Gallagher's abusive remark. When the Gallaghers answered the front door, Hanlon informed them that he was investigating a neighborhood dispute and they invited him into their foyer. Officer Hanlon inquired concerning the incident with Jerolman, and Gallagher, denying Jerolman's accusation, claimed that he had not left his house all day. At this point, another police officer arrived and the Gallaghers invited him to enter also. Officer Hanlon then asked Gallagher to accompany him outside for further explanation of the details of Jerolman's complaint, but Gallagher refused to leave his residence.

At that point, Hanlon placed his hand on Gallagher's shirt and advised him that he was under arrest for breach of the peace. ³ Gallagher protested that he was not going, pulled back his arm, and withdrew toward the wall behind him. When two policemen reached for Gallagher's arms, he clenched his fist and raised it toward officer Hanlon. Hanlon responded by kicking Gallagher in the groin, causing Gallagher to double over. When the officers again seized Gallagher's arms, Carol Gallagher intervened, jumping at officer Hanlon's arm and knocking him to his knees. As officer Hanlon was rising, Gallagher advanced toward him. The officer struck Gallagher in the eye. Carol Gallagher then ran to another room, and her husband was subdued, handcuffed and placed in a squad car. Carol Gallagher was then arrested for interfering with a police officer. Two more squad cars arrived and both Gallaghers were transported to the police station.

The defendant Richard Gallagher makes two claims on his appeal: (1) that his arrest was unlawful and (2) that the trial court erred in failing to instruct the jury that the unlawfulness of officer Hanlon's entry was a defense to the charges against him.

The claim of unlawful arrest is itself in two parts. It is based, first, on the United States Supreme Court's holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that the "Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." ⁴ (Citations omitted.) Id., 576, 100 S.Ct. at 1374-75; see State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). The defendant claims that the consent given to officer Hanlon's entry was not voluntary because it was procured as a result of Hanlon's deliberate concealment of his intention to arrest Richard Gallagher. Since the consent was involuntary, it was invalid. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973). Absent valid consent, and absent any claim by the state that the warrantless entry was the product of exigent circumstances, it follows, according to the defendant, that officer Hanlon's entry and the defendant's arrest violated the fourth amendment. See State v. Zindros, 189 Conn. 228, 237, 456 A.2d 288 (1983).

The claim of unlawful arrest is based, second, on an alleged violation of General Statutes § 54-1f(a), which provides, in relevant part: "Peace officers ... in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others." The defendant argues, citing Sims v. Smith, 115 Conn. 279, 283, 161 A. 239 (1932), that arrests are permitted by this statute only where there is no opportunity to obtain an arrest warrant. The defendant avers that the state had an ample opportunity to obtain a warrant for Richard Gallagher's arrest on the breach of the peace charge.

We do not reach the merits of these claims. Even if we were to consider them and resolve them in the defendant's favor, such a determination would not invalidate the convictions. "An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); see State v. Haskins, 188 Conn. 432, 442, 450 A.2d 828 (1982). The remedy for an unlawful arrest is the suppression of evidence obtained thereby. United States v. Crews, supra. We observe that the defendant has made no claim, either at trial or on appeal, that any evidence adduced at trial should have been suppressed.

We have recognized, however, that under certain circumstances an unlawful arrest entitles a defendant to dismissal of the charges against him. Where the affidavit underlying a bench warrant does not support a finding of probable cause; State v. Iasevoli, 188 Conn. 325, 331-32, 449 A.2d 996 (1982); State v. Saidel, 159 Conn. 96, 99-100, 267 A.2d 449 (1970); or where the bench warrant is based on facts unsupported by oath or affirmation; State v. Licari, 153 Conn. 127, 129, 214 A.2d 900 (1965); "an attack seasonably made by the accused on the court's jurisdiction of his person and premised on the illegality of the warrant" must prevail. Reed v. Reincke, 155 Conn. 591, 593, 236 A.2d 909 (1967). The defendant pleaded to the information and the record discloses that he made no attempt prior to judgment to challenge the lawfulness of his arrest. Under these circumstances, and in the absence of any mitigating factor, we conclude that any claimed defect in the court's jurisdiction was waived. State v. Saia, 172 Conn. 37, 40-41, 372 A.2d 144 (1976); State v. Tropiano, 158 Conn. 412, 430-31, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288 (1970).

Accordingly, we turn to the defendant's claim that the trial court erred in its instructions to the jury regarding the crime of interference with a police officer. The defendant proposed two jury instructions which were rejected by the trial court. ⁵ Although parts of these proposed instructions, as the defendant has conceded, were artlessly drafted, their unmistakable import was that the unlawfulness of officer Hanlon's entry constituted a defense to interfering with a police officer, and that therefore the question of that unlawfulness should have been submitted to the jury. Regarding the lawfulness of the officer's conduct, the court charged, quoting General Statutes § 53a-23: "A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal." The defendant contends that the trial court's failure to instruct the jury as he requested, when conjoined with the reading of General Statutes § 53a-23, had the effect of removing from the consideration of the jury the issue of unlawful entry. Because we agree with this contention, it becomes necessary to determine whether the unlawfulness of the entry could, as the defendant urges, constitute a defense to the charge.

At common law, reasonable resistance to an unlawful arrest was privileged conduct. See United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948); John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900); State v. Amara, 152 Conn. 296, 299, 206 A.2d 438 (1964); Model Penal Code § 242.2 comment 4 (1980); LaFave, Search and Seizure § 1.11 (1978); Chevigny, "The Right to Resist an Unlawful Arrest," 78 Yale L.J....