State v. Heinz

• Decision Date: 10 July 1984
• Citation: State v. Heinz, 193 Conn. 612, 480 A.2d 452 (Conn. 1984)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Curtiss HEINZ.

Page 452

480 A.2d 452

193 Conn. 612

STATE of Connecticut v.Curtiss HEINZ.

Supreme Court of Connecticut.

Argued May 10, 1984.

Decided July 10, 1984.

Carl Schuman, Asst. State's Atty., with whom, on the brief, were Rosita Creamer, Asst. State's Atty., and Maureen Platt, DeputyAsst. State's Atty., for the appellant-appellee(State).

Vincent J. Trantolo, Hartford, for appellee-appellant(defendant).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

PETERS, Associate Justice.

The principal issue in this case is whether affidavits accompanying an application for a warrant for arrest established probable cause to arrest the defendant on a charge of promoting an obscene performance.The defendant, Curtiss Heinz, was charged with four counts of promoting an obsceneperformance in violation of General Statutes § 53a-194, the first two counts relating to events that occurred on December 19, 1979, and the latter two counts relating to events that occurred on January 9, 1980.After a trial to a jury, the defendant was convicted on all four counts.The Appellate Session of the Superior Court determined that counts two, three and four should be dismissed.Prosecution under count two was held barred, on double jeopardy grounds, because of the close factual nexus between that count and the first count.Prosecution under counts three and four was held barred because of the legal insufficiency of the warrant with respect to those counts.With respect to the remaining count, count one, the Appellate Session found that an evidentiary error on the part of the trial court required a new trial.We granted petitions for certification from both the defendant and the state and consequently have two appeals before us.We find no error on the defendant's appeal, but error on the state's appeal.

The facts of this case are set forth in the opinion of the Appellate Session."In December, 1979, and January, 1980, the defendant was the liquor permittee of a cafe in East Hartford known as the Venus Lounge.The cafe consisted of a large room with a long bar opposite a small square stage which was raised approximately three feet above the floor.The stage was surrounded on three sides by tables and chairs.The fourth side abutted a wall which was covered by a large mirror.As an attraction the business featured several female 'exotic' dancers who would each perform a solo dance routine on the stage to the music of a jukebox.

"On the evening of December 19, 1979, Officer Robert Kenary of the East Hartford police department and Officer James Malcolm of the Hartford police department went to the Venus Lounge to investigate complaints by local residents of obscene dances taking place.Upon entering, the officers observed a woman take the stage fully dressed and proceed to remove all her clothes.She then put on a 'G-string' bikini and began her dance.During the course of her routine, several patrons sitting near the stage held up paper money.When this occurred the dancer would come over to the edge of the stage and squat or kneel in front of a patron, who would then 'stuff' the money into the bottom portion of her bikini.In addition, she allowed some of the patrons to fondle her breasts.She also briefly exposed her breasts and genital area several times during her dance.After she finished, another woman came on stage and performed a similar routine.The officers observed that the defendant was present on this occasion.

"On the evening of January 9, 1980, the officers returned to the cafe and again observed two similar dances.On this occasion, however, the defendant was not seen on the premises.

"Based on these observations, Kenary submitted an application for an arrest warrant with accompanying affidavits in which he attested that there was probable cause to believe the defendant was guilty of four counts of promoting an obscene performance, two on December 19, 1979, and two on January 9, 1980.The warrant was issued on January 17, 1980, and executed the following day."State v. Heinz, 38 Conn.Sup. 570, 571-72, 455 A.2d 346(1982).

I

The defendant's appeal questions the Appellate Session's order granting him a new trial on the first count of the information.He maintains that: (1) his motion to dismiss should have been granted because there was no probable cause for his arrest; (2) his motions for acquittal should have been granted because the state failed to establish the essential elements of the crime beyond a reasonable doubt; and (3) disputed evidence about liquor control commission regulations should be entirely barred from his retrial.We find these claims of error unpersuasive.

A

The defendant argues that the application for the arrest warrant and the supporting affidavits of Officer Kenary failed to provide information sufficient to establish probable cause for his arrest for violation of General Statutes § 53a-194(a).In the absence of probable cause, under the holding of State v. Licari, 153 Conn. 127, 132-34, 214 A.2d 900(1965), he was, he claims, entitled to dismissal of count one.Although the state, in order to test the continuing validity of State v. Licari, concedes that the arrest warrant failed to recite probable cause, that concession cannot compel this court to find error in the judgment to the contrary reached by both the trial court and the Appellate Session.We have decided to consider this issue on the merits.

The validity of an arrest warrant depends upon whether the application for the warrant and the accompanying affidavit establish probable cause to believe that: (1) a crime has been committed; and (2) the person to be arrested committed the crime.General Statutes § 54-2a(a)(1);¹ Practice Book§ 593;State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147(1983);State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338(1980);1 LaFave, Search and Seizure(1978)§ 3.7.The affidavit must recite sufficient facts so that the judicial officer who issues the warrant can, relying solely on the information thus brought to his or her attention, make an independent determination that probable cause exists as to each element of every crime charged.U.S. Const., amends. IV and XIV;Conn. Const., art. I § 7;Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527(1983);Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306(1971);State v. Bember, 183 Conn. 394, 409-10, 439 A.2d 387(1981);State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121(1972).

In our review to determine the sufficiency of an affidavit to establish probable cause we operate under two constraints.One inheres in the standard of probable cause to arrest.That standard is less demanding than that which attends an inquiry into whether there has been a prima facie showing of criminal activity.SeePractice Book§ 815(5).Instead, all that is required is that the affidavit, read in a common-sense manner, give objective evidence of a fair probability that proscribed activity has occurred.Illinois v. Gates, supra, 2330, 2332;Torres v. Puerto Rico, 442 U.S. 465, 471, 99 S.Ct. 2425, 2429, 61 L.Ed.2d 1(1979);Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637(1969);State v. Jackson, supra, 445, 294 A.2d 517.The other constraint inheres in the substantial deference to be accorded to the decision of the judicial authority that issued the warrant.That deference is mandated by our constitutions' strong preference that arrests, like searches, are normally to be conducted pursuant to a warrant.Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721(1984);Illinois v. Gates, supra, 2331, United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684(1965);State v. Bember, supra, 412-13, 439 A.2d 387.State v. DeChamplain, supra, 527, 533, 427 A.2d 1338;State v. Jackson, supra, 445, 294 A.2d 517.

Recognizing these constraints, we must examine the affidavits before us to determine whether they establish probable cause that the defendant committed the crime of promoting an obscene performance under General Statutes § 53a-194.² The crime described by that statute contains three essential elements: (1) the accused must have knowledge of the content and character of the performance; (2) the accused must have promoted the performance; and (3) the performance must have been obscene.The defendant challenges the sufficiency of the affidavits with respect to each of these elements.He thus puts into issue both the commission of a crime and his own participation therein.We conclude that there was probable cause to issue a warrant with respect to the first count.

The two affidavits of Officer Kenary related to events that transpired on December 19, 1979, and January 9, 1980.³They indicated that, on each date, Kenary, accompanied by Hartford Police Officer Malcolm, had entered the Venus Lounge in East Hartford, and had there observed performances, specifically described, involving dancers who, while scantily clad, had engaged in repeated physical encounters with customers in exchange for gratuities.The affidavit concerning the December 19 incidents identified the defendant as the permittee of the Venus Lounge.The accompanying affidavit concerning the January 9 incidents did not expressly identify the defendant as the permittee but stated that "the permittee ... was not seen" by the officers.On December 19, 1979, the defendant was present during the performances, while on January 9, 1980, he was not.

A common-sense reading of the affidavits attests to probable cause to arrest the defendant for violation of § 53a-194 on December 19, 1979, the crime with which he was charged in the first count.From the representations concerning the defendant's presence and his status as permittee, the judicial authority could reasonably infer that the defendant had knowledge...