State v. Januszewski

• Decision Date: 19 August 1980
• Citation: 182 Conn. 142,438 A.2d 679
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jerome JANUSZEWSKI.

Page 679

438 A.2d 679

182 Conn. 142

STATE of Connecticut v. Jerome JANUSZEWSKI.

Supreme Court of Connecticut.

Argued April 8, 1980.

Decided Aug. 19, 1980.

Certiorari Denied July 2, 1981.

See 101 S.Ct. 3159.

Ronald E. Cassidento, West Hartford, with whom, on brief, was Allen Marko, law student intern, for appellant (defendant).

D. Michael Hurley, Asst. State's Atty., with whom, on brief, was C. Robert Satti, State's Atty., for appellee (State).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant has appealed from his conviction of possession with the intent to sell of one kilogram or more of a cannabis-type substance in violation of General Statutes § 19-480a(b) and possession of four ounces or more of a cannabis-type substance in violation of § 19-481(b). On appeal, the defendant raises five claims of error: Three are directed to the court's rulings on motions to suppress certain evidence; one is directed to the court's decision to quash the defendant's subpoena directed to the contents of the arresting officer's personnel file; and the last is directed to the court's instructions to the jury relating to the burden of proof. We discuss the facts of the case as they relate to each of these claims.

I

Two of the motions to suppress challenged the admissibility of a total of fifty-eight pounds of marijuana taken from the vehicle that the defendant was in control of at the time of his arrest on the ground that the vehicle itself was unlawfully seized. In a third motion to suppress the defendant claimed that an inculpatory statement made by him concededly before he was informed of his Miranda rights was inadmissible because obtained in violation of the fifth amendment to the United States constitution. The court's memorandum of decision on two of these motions, read in the light of other undisputed facts, ¹ discloses the following: On April 29, 1977, at approximately 3:30 p.m., Trooper Michael Cope of the state police was traveling southbound on route 12 in Preston when he noticed a Cadillac parked next to a motorcycle in a commuter parking lot. Both vehicles were facing route 12. When the trooper noticed two people in the front seat of the Cadillac, he decided to turn into the parking lot. As he did so, he observed the person, later identified as Bruce Kenyon, who was seated in the passenger seat of the Cadillac, drop down from the front seat and crawl out of the door and under the motorcycle parked next to the automobile. Seeing this patently furtive conduct, the trooper blocked the Cadillac by parking in front of it and proceeded to investigate the matter. As he did so, the person seated in the driver's seat locked the passenger door of the vehicle, exited from the driver's door and then locked that door. Cope soon recognized the person who had exited from the driver's seat as Jerome Januszewski, the defendant, who the trooper knew had been previously arrested and convicted of a drug-related offense. When Cope asked the defendant and the person who was with him what they were doing there, no explanation was given and the defendant became hyperactive and nervous. Cope then noticed a green garbage bag on the floor of the front seat of the Cadillac, and requested permission of the defendant to examine the contents. When this permission was denied, Cope returned to the police vehicle to check the automobile registration and identification of the defendant and the person with him, who, evidently, was the operator of the motorcycle. While Cope was in his vehicle he also called on his police radio for his supervisor and Trooper John Herman, both of whom were familiar with the defendant and his drug-related activity. During the time that Cope was in the police vehicle, the defendant and the person with him wandered freely around the parking lot until the defendant approached the police vehicle and asked Cope if they could speak together. Cope testified at the suppression hearing that the defendant then entered the police vehicle and stated: " 'Look Mike, you got me, but let me go and I'll work for you,' or words to that effect. (State's Attorney): Did you reply to that? (Trooper Cope): Yes, sir. I stated, 'How much grass?' That was it. Meaning, how much grass was in the bag, or in the car, or in the garbage bag. (State's Attorney): Did he answer that question? (Trooper Cope): Yes, sir. He stated, 'Ten big ones.' (State's Attorney): What does that mean, or what do you understand that to mean through previous experience, training on the streets, 'ten big ones'? (Trooper Cope): Ten pounds."

Shortly after this exchange, the substance of which the defendant does not dispute, Sergeant Stuyniski arrived on the scene and the defendant was arrested. When the officers requested the keys to the Cadillac from the defendant, he responded by saying that he did not have them. When Stuyniski indicated that if the defendant did not surrender the keys the automobile might be damaged as a result of the police gaining entry forcibly, the defendant gave the officer the keys. The officers then entered the vehicle and removed from the front seat the green trash bag, in which they discovered ten individual ziplock plastic bags containing a substance later identified as marijuana. Contrary to the statement in the defendant's brief, the police did not search the trunk of the Cadillac at this time. Instead, the officers transported the Cadillac to the state police barracks and obtained a search warrant to search the trunk. On doing so, the officers discovered forty-eight ziplock plastic bags, each of which contained one pound of a substance later identified as marijuana.

A

We turn first to the defendant's claim that his automobile was seized in violation of the fourth amendment to the United States constitution. In this portion of the defendant's argument he claims that Cope's action in blocking the Cadillac upon his entrance into the parking lot constituted a seizure of the automobile and that this seizure was unreasonable under the fourth amendment.

There is no question but that, on the facts of this case, Cope temporarily detained the Cadillac that was under the defendant's control and, at least constructively, the defendant himself by his conduct in blocking the automobile. This initial detention was for investigatory purposes and did not constitute an actual arrest of the person or complete seizure of the automobile. It was a sufficient restraint on the liberty of the defendant, however, to implicate the defendant's right under the fourth amendment to the United States constitution to be secure in his person and effects against "unreasonable searches and seizures." U.S. Const., amend. IV; Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 556-58, 96 S.Ct. 3074, 3082-83, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). In Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969), the Unites States Supreme Court stated: "Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.' "

That does not mean, of course, that the police can never detain a person or his property without probable cause to arrest or to seize. ² The Supreme Court expressly rejected that contention in Terry v. Ohio, supra, 392 U.S. 20-22, 88 S.Ct. 1879, 1880; see 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.1(d); and specifically with respect to investigative stops of automobiles, in Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), and United States v. Brignoni-Ponce, supra, 880, 95 S.Ct. 2579. The fourth amendment was never intended to shackle the police by preventing their use of reasonable efforts to both detect and prevent crime. The fourth amendment prohibition is against "unreasonable searches and seizures." (Emphasis added.) The question presented, then, is whether under all the circumstances Cope's conduct in detaining the defendant and the vehicle the defendant was operating was reasonable under the fourth amendment. Delaware v. Prouse, supra, 653-54, 99 S.Ct. 1395-96; Terry v. Ohio, supra, 392 U.S. 20, 88 S.Ct. 1879.

There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails. Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). The test to be applied, however, is an objective one: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, supra, 392 U.S. 22, 88 S.Ct. 1880. In justifying the particular intrusion "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, 392 U.S. 21, 88 S.Ct. 1880, see United States v. Brignoni-Ponce, supra, 422 U.S. 884, 95 S.Ct. 2581, State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973). While general investigation may be based upon suspicion and guesswork, a police officer's decision to restrain a person's liberty or the use of his property must be made on more than a mere hunch. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Terry v. Ohio, supra, 392 U.S. 22, 88 S.Ct. 1880; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Watson, supra, 165 Conn. 585, 345 A.2d 532. The specific facts that form the basis of...