State v. Grant

Decision Date22 August 1978
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. William F. GRANT.

Austin J. McGuigan, Asst. State's Atty., with whom was John J. Dropick, Asst. State's Atty., for appellant (state).

John P. McKeon, Hartford, for appellee (defendant).

Before LOISELLE, BOGDANSKI, LONGO, HEALEY and SIDOR, JJ.

LOISELLE, Associate Justice.

The state filed a writ of error from a judgment of the Court of Common Pleas in Hartford County dismissing with prejudice the case against the defendant. At the request of both parties, we granted a motion to expedite the hearing.

The essential facts of the case are undisputed: Pursuant to a warrant, issued on the basis of information obtained from two authorized wiretaps, the defendant was arrested and charged with several crimes pertaining to alleged gambling activities. Before trial, the defendant moved to suppress the evidence derived from the wiretaps on the ground that the communications were unlawfully intercepted in violation of chapter 959a of the General Statutes, entitled "Wiretapping and Electronic Surveillance." The court granted the motion, finding that the two applications for wiretap orders were acknowledged by the appropriate state's attorneys, but were not submitted under the state's attorneys' oaths as required by General Statutes §§ 54-41b and 54-41c. The court concluded that suppression of the evidence was required by General Statutes § 54-41m and Practice Book, 1963, § 2234 and subsequently, the defendant's motion to dismiss was granted.

The state's writ of error raises two issues: (1) do General Statutes §§ 54-41b and 54-41c require that an application for a wiretap order be submitted under the oath of the appropriate state's attorney and (2) if so, does General Statutes § 54-41m compel suppression of communications derived from wiretap orders issued on the basis of applications merely acknowledged by the appropriate state's attorney?

I

A resolution of those issues requires interpretation of the relevant provisions of chapter 959a, which governs the issuance of orders authorizing wiretaps. General Statutes § 54-41b provides that "(t)he state's attorney for the county in which the interception is to be conducted may make application to a panel of judges for an order authorizing the interception of any wire communication by investigative or law enforcement officers . . . ." Under this statute, it is only the state's attorney for a particular county who is authorized to submit an application for a wiretap order. See State v. DeMartin, 171 Conn. 524, 543, 370 A.2d 1038. The following provision, General Statutes § 54-41c, begins: "Each application for an order authorizing the interception of a wire communication Shall be made in writing upon oath or affirmation to a panel of judges." (Emphasis added.) Although this sentence does not explicitly state that the required "oath or affirmation" is to be that of the applicant state's attorney, its association with the previous provision implies this. Such a reading is confirmed by subsection 12 of General Statutes § 54-41c which specifies that "(a)llegations of fact in the application may be based either upon the personal knowledge of the Applicant or upon information and belief." (Emphasis added.) The remainder of this subsection details how the evidence relied upon for a determination of probable cause is to be conveyed and supported, concluding: "Affidavits of persons other than the applicant may be submitted in conjunction with the application if they tend to support any fact or conclusion alleged therein. Such accompanying affidavits may be based either on personal knowledge of the affiant, or information and belief with the source thereof and reason therefor specified."

In construing a statute, this court seeks to ascertain the intent of the legislature as it is expressed through the words actually used. Schwab v. Zoning Board of Appeals, 154 Conn. 479, 482, 226 A.2d 506. Generally, " 'no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .' " Doe v. Institute of Living, Inc.,175 Conn. 49, 58, 392 A.2d 491. Insofar as it is possible, the entire enactment is to be harmonized, each part made operative. Sillman v. Sillman,168 Conn. 144, 148, 358 A.2d 150.

When read together, General Statutes §§ 54-41b and 54-41c clearly reveal that the "oath or affirmation" required is that of the applicant, who can only be the state's attorney for the county in which the interception is to occur. Contrary to the state's contention that a sworn affidavit submitted by the investigating officer meets the requirement, General Statutes § 54-41c (12) explicitly provides for the use of affidavits "of persons other than the applicant" only "if they tend to support any fact or conclusion alleged (in the application)." While these supplementary affidavits are not per se required to satisfy the statute, the statute compels the "oath or affirmation" of the applicant for every application.

The state argues that General Statutes § 54-41c "mirrors" its federal counterpart, 18 U.S.C. § 2518, and that the latter statute's "oath or affirmation" requirement is satisfied by the sworn affidavit of an investigating officer. The state's claim fails to take into consideration important differences in the language of the two statutes. Under the federal scheme, the attorney general or a designated assistant attorney general is empowered to Authorize a wiretap application. 18 U.S.C. § 2516. The application is, in fact, made by the "investigative or law enforcement officer" and "authorized" by one of the so-empowered officials. See 18 U.S.C. § 2518(1)(a). The Connecticut scheme, on the other hand, envisions an application submitted by the appropriate state's attorney on behalf of "the investigative or law enforcement officers or agency for whom the authority to intercept a wire communication is sought." General Statutes § 54-41c(2). Consequently, federal authority cannot be relied upon as guidance on this point.

It is the further claim of the state that General Statutes § 54-41c was intended to delineate a procedure for the issuance of wiretap orders which meets the requirements of the fourth amendment of the United States constitution. It is true that the comparable federal statute was enacted in response to Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040. State v. DeMartin, supra, 171 Conn. 538, 370 A.2d 1038. In Berger, the United States Supreme Court determined that the New York eavesdropping statute violated the fourth amendment in that it was too broad, not requiring, among other deficiencies, sufficiently specific information as a basis for a finding of probable cause. Reiterating established principles, the court noted (388 U.S. p. 55, 87 S.Ct. p. 1882) that "(t)he Fourth Amendment commands that a warrant issue . . . only upon probable cause supported by oath or affirmation" and that such "exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed."

There is no doubt that the term "oath or affirmation" stems from the fourth amendment 1 and that ordinarily this requirement is satisfied by the submission to a judge or magistrate of affidavits signed by police officers. See, e. g., State v. Rose, 168 Conn. 623, 362 A.2d 813; State v. Townsend, 167 Conn. 539, 356 A.2d 125; State v. Licari, 153 Conn. 127, 214 A.2d 900. A particular statutory scheme limiting the issuance of warrants, however, may offer greater protection than that minimally required by the fourth amendment. The New York statute scrutinized in Berger, supra, specifically provided for the issuance of an eavesdropping order only upon " 'oath or affirmation of a district attorney . . . that there is reasonable ground to believe that evidence of crime may be thus obtained.' " Id., 388 U.S. 54, 87 S.Ct. 1881. The New York "eavesdropping" statute enacted after Berger ; N.Y.Crim.Proc.Law art. 700; appears to maintain this approach, requiring that an application be made in writing and "be subscribed and sworn to by an applicant"; N.Y.Crim.Proc.Law § 700.20; "applicant" being defined as a district attorney or the attorney general. N.Y.Crim.Proc.Law § 700.05. 2

The state argues, however, that a requirement that the application be submitted under the "oath or affirmation" of a state's attorney does not offer greater protection than the traditional supportive affidavits of investigating officers, and, indeed, may not suffice to meet fourth amendment requirements since more often than not state's attorneys are without "personal knowledge" of the relevant facts. General Statutes § 54-41c(12) explicitly states that "(a)llegations of fact in the application may be based Either upon the personal knowledge of the applicant or upon information and belief." (Emphasis added.) In other words, the state's attorney is to swear to the truth of the facts alleged in the application to the extent that he has personal knowledge, information or belief. The statute goes on to state how the facts known or believed are to be supported in the application in order that the panel of judges to whom the application is submitted may make an independent determination of probable cause, as is required by the fourth amendment. The statute cannot circumvent this essential constitutional requirement and the oath of the state's attorney alone does not establish probable cause. Rather, it serves to ensure, as far as possible, that the applicant state's attorney has made an intermediary determination, on the existing facts, that issuance of a wiretap order is warranted both constitutionally and statutorily.

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