State v. Johnson

• Decision Date: 19 January 1972
• Citation: 162 Conn. 215,292 A.2d 903
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ronald S. JOHNSON.

Page 903

292 A.2d 903

162 Conn. 215

STATE of Connecticut v. Ronald S. JOHNSON.

Supreme Court of Connecticut.

Jan. 19, 1972.

Thomas J. Corradino, New Haven, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

COTTER, Associate Justice.

The defendant was charged with possessing or having under his control a quantity of marijuana in violation of Public Act No. 555, § 37(a), adopted in the 1967 legislative session, now General Statutes (Rev. to 1968) § 19-481. In this appeal from his conviction, the defendant assigns error, inter alia, in the refusal of the court to suppress evidence seized a search warrant under which the New Haven police officers acted in gaining entry to his apartment, claiming it was invalid because it authorized the police to enter and search for various listed items which could be used to violate the conspiracy statute but failed to mention any underlying substantive offense; that, assuming the warrant was not invalid on its face, the only items which could be seized were those listed in the warrant and the seizure of the alleged marijuana was unconstitutional and illegal because it did not authorize the seizure of marijuana; that, even if the warrant was valid, the items seized were not admissible in evidence because of the manner in which the search was conducted; that the court refused to permit a disclosure of an unnamed informant's identity; and that the state failed to prove beyond a reasonable doubt the chain of custody of three glassine bags prior to their introduction into evidence.

The trial was justified in finding the following: The defendant rented an apartment in September, 1967, on Chapel Street in New Haven, which he was occupying on December 23, 1967, as a lessee, and to which no one else either had a key or access. At approximately 6 p.m. on that day members of the New Haven police department, acting under the authority of a search warrant, gained entry to the apartment and at the time of the entry, finding no one present, they proceeded to conduct a search of the apartment. In the course of the search, one of the officers, Sergeant John O'Connor, found three glassine bags containing plant-like material in the refrigerator in the kitchen of the defendant's apartment. Sergeant O'Connor, from his experience, believed that the bags contained marijuana and he took them into his control and placed them in a shoe box. Later, on December 26, 1967, Detective Otha Buffaloe of the New Haven police department, received the shoe box from Sergeant O'Connor in the office of the gambling and narcotics squad. Detective Buffaloe kept the shoe box with him and delivered it and its contents to Miss Dorothy Carlson, a receptionist in the toxicological laboratory in Hartford, and they were received by Dr. Abraham Stolman, chief toxicologist for the state.

The three glassine bags were identified and marked in evidence at the trial and each one had the marking 67,4934 on it as well as one other identifying numeral, i.e., either 1, 2 or 3 on the respective bag. These markings were placed on each bag by Dr. Stolman, who made a chemical analysis of the contents which revealed the presence of the narcotic substance marijuana or cannabis plant.

I

(a)

We cannot agree with the claim of the defendant that the general conspiracy statute, § 54-197, of the General Statutes, does not define a substantive criminal offense. The defendant, in furtherance of his position, argues that the warrant violates the provisions of the fourth amendment of the United States constitution as well as § 54-33a(b) of the General Statutes, which provides that a search warrant may issue '(u)pon complaint on oath by any state's attorney or prosecuting attorney or by any two credible persons, to any judge of the superior court or the circuit court, that he or they have probable cause to believe that any property (1) possessed, controlled, designed or intended for use or which is or has been used or which may be used as the means of committing any criminal offense.' We have repeatedly held that conspiracy is a common-law crime and punishable as such under the statutes relating to the punishment of high crimes and misdemeanors. State v. Murphy, 124 Conn. 554, 562, 1 A.2d 274; see State v. Hayes, 127 Conn. 543, 588, 588, 604, 18 A.2d 895; 16 Am.Jur.2d, Conspiracy, §§ 1, 2; 15A C.J.S. Conspiracy § 34, p. 720. The commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes. Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; Fimara v. Garner, 86 Conn. 434, 437, 85 A. 670; United States v. Cheers, 439 F.2d 1097, 1098 (5th Cir.). The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes. State v. Setter, 57 Conn. 461, 470, 18 A. 782; see Johnson v. Lee, 281 F.Supp. 650, 655 (D.Conn.), for a similar view of § 54-197. Since conspiracy in Connecticut is itself a substantive crime, the holding of Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040, is inapposite as to this issue.

(b)

The search and seizure warrant procured by the police officers and issued by a judge of the Circuit Court authorized the police to enter '(t)he premises known as 1345 Chapel Street, New Haven, Connecticut, Room D-22' and search for dynamite, blasting caps, guns, ammunition 'and any other paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes.' The defendant claims that the warrant also was 'invalid on its face' because the additional language, after specifying certain items to be seized, provided for the seizure of 'any other paraphernalia which could be used to violate' the conspiracy statute.

In a prior case, involving the conviction of Ronald S. Johnson, the present defendant, for conspiracy to cause injury to persons and property by means of explosive materials and compounds in violation of § 54-197 of the General Statutes, we passed on the validity of the search warrant presently under consideration in this case, with specific reference to the admission in evidence of a United States Army field manual, and we held in that case that only that portion of the search warrant which authorized the seizure of any 'paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes' was, 'in that respect, a general warrant' and that, therefore, only that part of the warrant was to be considered invalid. State v. Johnson, 160 Conn. 28, 35, 273 A.2d 702. The entry into the premises authorized by the warrant in question was valid and the search for the articles specified in that warrant was legally and constitutionally permissible. Given, therefore, a valid entry and a permissible search we must then consider whether the constitutional guarantee of the fourth amendment prevents the seizure of property the possession of which is a crime even though the searching officers are unaware that such contraband is on the premises when the search is initiated. Harris v. United States, 331 U.S. 145, 154, 155, 67, S.Ct. 1098, 91 L.Ed. 1399, rehearing denied, 331 U.S. 867, 67 S.Ct. 1527, 91 L.Ed. 1871; 47 Am.Jur., Searches and Seizures, § 52; 79 C.J.S. Searches and Seizures § 17.

II

We disagree with the claim of the defendant that, assuming the warrant was not invalid on its face, the seizure of the alleged marijuana was unconstitutional because the warrant did not authorize the seizure of marijuana. The officers, in this case, were searching the defendant's apartment under authority of a search warrant when one of them discovered items in the defendant's refrigerator which, from his experience, he believed to be marijuana. The items for which the search was conducted, viz., dynamite, blasting caps, guns and ammunition, were in no way related to marijuana, but the possession of marijuana was a crime at the time of the seizure. General Statutes § 19-481. Possession of contraband is a criminal offense and the marijuana was properly subject to seizure. See United States v. Rabinowitz, 339 U.S. 56, 64, 70 S.Ct. 430, 94 L.Ed. 653. The defendant in this connection relies principally on the requirements enunciated in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231, in which the court stated, inter alia, that warrants shall particularly describe the things to be seized, making general searches impossible, so that the seizure of one thing under a warrant describing another is impossible.

Exceptions to the rigid test of reasonableness of the Marron doctrine, however, have been recognized and approved by the Supreme Court of the United States in Harris v. United States, supra, and Abel v. United States, 362 U.S. 217, 8o S.Ct. 683, 4 L.Ed.2d 668, rehearing denied, 362 U.S. 984, 80 S.Ct. 1056, 4 L.Ed.2d 1019. The court in the Harris case reasserted the proposition that each case must be decided on its own facts and circumstances; and that the 'test of reasonableness cannot be stated in rigid and absolute terms.' (331 U.S. p. 150, 67 S.Ct. p. 1101, 91 L.Ed. 1399) It set forth the exceptions to an otherwise rigid and absolute rule concerning unreasonable searches and seizures which come within the constitutional interdict when it stated (p. 154, 67 S.Ct. p. 1103, 91 L.Ed. 1399): 'This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the...