State v. Jacobs

• Decision Date: 24 May 1994
• Docket Number: No. 14742,14742
• Citation: 641 A.2d 1351,229 Conn. 385
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joshua JACOBS.

Page 1351

641 A.2d 1351

229 Conn. 385

STATE of Connecticut v. Joshua JACOBS.

No. 14742.

Supreme Court of Connecticut.

Argued Jan. 12, 1994.

Decided May 24, 1994.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, was Kevin Randolph, Deputy Asst. Public Defender, for appellant (defendant).

Harry Weller, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and MARY R. HENNESSEY, JJ.

BORDEN, Associate Justice.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that the fourth amendment exclusionary rule did not apply to the hearing on the state's motion for revocation of the defendant's probation. The defendant appeals, following our grant of certification, ¹ from the judgment of the Appellate Court. That judgment affirmed the judgment of the trial court revoking the defendant's probation and ordering that the defendant's previously suspended sentence be executed. State v. Jacobs, 30 Conn.App. 340, 620 A.2d 198 (1993). The trial court had refused to hold an evidentiary hearing on the defendant's motion to suppress evidence seized pursuant to two search warrants, on the ground that the exclusionary rule does not apply to probation revocation proceedings. We affirm the judgment of the Appellate Court.

The facts are undisputed. On March 23, 1990, pursuant to a conviction for possession of marijuana with intent to sell in violation of General Statutes (Rev. to 1989) § 21a-277, the trial court, Damiani, J., sentenced the defendant to five years incarceration, execution suspended, and placed him on probation for three years. That conviction followed a search of the defendant's residence that had yielded eight pounds of marijuana, a high capacity semiautomatic pistol and another weapon. One of the conditions of probation was that the defendant not violate the criminal laws of this state.

On August 2, 1990, the defendant called the Hamden police to his residence in order to investigate a burglary. While at the defendant's residence, Investigator Boguslaw Kicak questioned the defendant about a gun case that was in plain view. The defendant stated that he owned a Starr .45 caliber semiautomatic pistol, and that he had a permit for the weapon. Subsequent investigation by the Hamden police department disclosed, however, that the defendant's permit had been revoked because of his conviction for possession of marijuana, an unclassified felony. Consequently, the Hamden police department sought a warrant to search the defendant's residence and seize the pistol, ammunition, other firearms, and various other items, asserting that the items sought to be seized were evidence of the com mission of the offense of criminal possession of a firearm by a convicted felon in violation of General Statutes (Rev. to 1989) § 53a-217. ² The affiants on the search warrant affidavit, who stated the foregoing facts, were Kicak and Officer Linda Guerra.

On August 17, 1990, after a Superior Court judge issued the warrant, Guerra and Kicak searched the defendant's residence pursuant to the warrant. Guerra found and seized the Starr pistol and another, loaded, semiautomatic revolver. During the search, Guerra observed in plain view two zipper sealed plastic bags containing a green, plant-like material that, on the basis of her experience in law enforcement, she believed to be marijuana. Kicak field tested the material, and it tested positive for marijuana.

Despite these observations, the officers did not seize the plastic bags, although they were aware of the defendant's conviction of possession of marijuana with intent to sell. Instead, on the same day, Guerra and Kicak sought and secured a second search warrant for marijuana and related paraphernalia. In their supporting affidavit for the second warrant, Guerra and Kicak described the first search. They stated that the defendant had been charged with violating § 53a-217 as a result of the search, and that they had seen in plain view the two plastic bags, the contents of which had field tested positive for marijuana. Acting pursuant to this second warrant, the police searched the defendant's residence, and seized a substantial amount of marijuana and drug paraphernalia.

Thereafter, the defendant's probation officer moved to revoke the probation on the basis of, inter alia, the defendant's possession of the marijuana and paraphernalia seized during the second search. The defendant moved to suppress the evidence seized, asserting that when Kicak and Guerra applied for the warrants to search the defendant's residence, they knew or had reason to know that the defendant was on probation. The trial court, Schimelman, J., refused to hold an evidentiary hearing on the defendant's motion to suppress, on the ground that the exclusionary rule does not apply to revocation of probation proceedings. After a hearing on the motion to revoke probation, the trial court found that the state had proven by reliable and probative evidence that the defendant, by possessing marijuana, had violated the condition of his probation that he not violate any criminal law of this state. Accordingly, the trial court revoked the probation and imposed the sentence of five years incarceration.

On appeal to the Appellate Court, the defendant claimed that: (1) the exclusionary rule applied to the revocation of probation proceedings; (2) the first search warrant failed to establish probable cause; and (3) therefore, the evidence was illegally seized and should have been suppressed. State v. Jacobs, supra, 30 Conn.App. 340, 620 A.2d 198. The Appellate Court rejected his contentions, and affirmed the judgment of the trial court. Id., at 346, 620 A.2d 198. This appeal followed.

The defendant repeats in this court his basic position as he asserted it in the Appellate Court. He claims that: (1) the fourth amendment exclusionary rule applies to a revocation of probation proceeding if the officers performing the search knew or should have known of the defendant's probationary status; (2) the officers in his case had, or had reason to have, that knowledge; (3) if a pretextual motive on the part of the police is required for the application of the exclusionary rule, that requirement was met here because the first warrant facially lacked probable cause to believe that the defendant had committed any crime; and (4) the defect in the first warrant invalidated the search performed pursuant to the second warrant. We disagree.

The defendant's arguments rest on two essential premises, namely, that: (1) dictum of this court in Payne v. Robinson, 207 Conn. 565, 573, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 230 (1988), applies to this case so as to require the application of the exclusionary rule; and (2) the first warrant was defective because it rested on the legally incorrect assertion that the defendant's possession in his residence of the Starr pistol was a violation of § 53a-217. See footnote 2. With respect to the first premise, we conclude that the dictum in Payne has no application to this case because in this case, unlike Payne, the search was conducted pursuant to a warrant. With respect to the second premise, we conclude that, although there may be probation revocation cases in which even a search pursuant to a warrant might be subject to the exclusionary rule, this is not such a case.

Payne v. Robinson, supra, 207 Conn. 565, 541 A.2d 504, was a habeas corpus case in which the petitioner challenged the validity of his revocation of probation. The basis of the petitioner's challenge was the warrantless search of his car. The petitioner was on probation at the time of the search, but the officer conducting the search had no knowledge of the probationary status. Id., at 571, 541 A.2d 504. In that context, we held that the fourth amendment exclusionary rule did not apply. Id., at 571-72, 541 A.2d 504.

We reasoned that, because the purpose of probation revocation proceedings is to determine whether the probationer is complying with the conditions of probation, the state has a strong interest in accurate factfinding that would be impaired by the application of the exclusionary rule. Id. Against that interest we balanced the deterrent effect of the rule. We concluded that application of the exclusionary rule would have only a marginal deterrent effect. Because there was already a deterrent effect created by the application of the rule to any criminal proceedings, and because the use of evidence in a probation revocation proceeding falls outside a police officer's zone of primary interest, we concluded that "exclusion of such evidence will not significantly affect a police officer's motivation in conducting a search." Id.

We specifically did "not reach the question of whether the exclusionary rule would apply in probation revocation proceedings when the police officer who conducted the search was aware or had reason to be aware of the suspect's probationary status." Id., at 573, 541 A.2d 504. We stated in dictum that "[i]f illegally obtained evidence was admissible in such circumstances, the police officer might very well discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation. Application of the exclusionary rule to the probation hearing might therefore contribute significantly to the deterrence of illegal searches." Id.

The defendant argues, as he did in the Appellate Court, that this dictum should be converted into a holding. He contends that this record demonstrates that Kicak and Guerra knew or had reason to know of his probationary status when they performed the first search, and that, therefore, the dangers contemplated by our dictum in Payne require the application of the exclusionary rule. In such a case, he asserts, unless the exclusionary rule applies, the...