State v. Kolinsky

• Decision Date: 23 December 1980
• Citation: 182 Conn. 533,438 A.2d 762
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David A. KOLINSKY.

Page 762

438 A.2d 762

182 Conn. 533

STATE of Connecticut v. David A. KOLINSKY.

Supreme Court of Connecticut.

Argued Oct. 17, 1980.

Decided Dec. 23, 1980.

Max F. Brunswick, New Haven, for appellant (defendant).

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

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

ARTHUR H. HEALEY, Associate Justice.

After a trial to a jury, the defendant was found guilty of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4). ¹ From the judgment rendered thereon, the defendant appeals and presses three claims of error. He contends that the trial court erred (1) in denying his motion to suppress evidence as to items seized in the warrantless search of his car; (2) in granting the state's motion to obtain nontestimonial evidence from the defendant; and (3) in refusing to charge the jury on robbery in the second degree as a lesser included offense of robbery in the first degree.

The essential circumstances surrounding the case are not in dispute. On October 25, 1978, shortly before 8:30 p. m., a West Haven police officer observed a car going through a stop sign without stopping in the vicinity of Pepe's Grocery Store in West Haven. Because the police officer was responding to another call, he did not stop the car. He did note, however, that there were two white males in the car, and that the driver of the vehicle was noticeably smaller than the passenger.

At approximately 8:30 p. m., a witness standing outside of Pepe's Grocery Store saw a white male emerge from a similar looking car. The male was wearing a ski mask and was armed with a shotgun. The car in which he was a passenger left the area. The armed male entered the store and robbed Guiseppe DePalma of his store receipts and wallet. The robber then fled from the store and ran in the direction of Washington Manor. At the corner of Court Street and Washington Manor, the robber tripped over a wire fence; his shotgun discharged, and he dropped his ski mask, eyeglasses and the victim's wallet. He then ran up Washington Manor.

The West Haven police responded to the scene of the robbery within minutes. While cruising in the area, a police officer saw Michael Celso get out of a car parked on Washington Manor, a short distance from the robbery. Celso is a short individual and a person known to the police as actively involved in criminal activity.

The vehicle which dropped off the robber was described to the police as being dark in color, of an older vintage, small to medium in size, with a square front, a torn back seat, and a visor down on the passenger's side. The car, which was parked on Washington Manor, and from which Celso alighted, was identified by two eyewitnesses as a car which looked similar to the one involved in the robbery. One of the two witnesses had previously ruled out another car as being the vehicle which dropped off the robber. The car on Washington Manor was in fact dark in color, of an older vintage, similar in size to the one seen at Pepe's, with a torn back seat and a visor down on the passenger's side of the car.

After an identification check was made of the parked car, and it was determined that the car was registered in the defendant's name, the police, at approximately 11:30 p. m., approached the vehicle and observed a police scanner through the window. The car was then searched. In addition to the scanner, the police found a box of .12 gauge shotgun shells, several knives and a list of area police department broadcast frequency codes.

The defendant was arrested on December 5, 1978, by the Stamford police after he was found hiding in a tree house in Stamford. After his arrest, hair samples were taken from the defendant. One of them matched one of those removed from the robber's ski mask, which was recovered by the police where the robber had tripped over the fence. The eyeglasses worn by the robber were also recovered where the robber had tripped and were positively identified as the defendant's. After a jury trial, the defendant was found guilty of robbery in the first degree, and judgment was rendered thereon.

The defendant's first claim of error is that his due process rights were violated because of the trial court's refusal to grant the defendant's motion to suppress the evidence of items seized in the search of his car. He contends that the search of his car violated the fourth amendment's prohibition against unreasonable searches and seizures because (1) the police did not have probable cause to search the car and (2) even if the police did have probable cause, a warrant should have been obtained before the search was conducted because there were no exigent circumstances making it impractical to obtain a warrant. The state claims that both probable cause and exigent circumstances existed.

The fourth amendment to the United States constitution, which is applicable to the states through the fourteenth amendment; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); guarantees "(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In most instances, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment ...." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "In the ordinary case, therefore, a search of private property must be both reasonable and pursuant to a properly issued search warrant." Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); see Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Narrowly drawn and well-delineated exceptions to the warrant requirement, however, have been established. See, e.g., Arkansas v. Sanders, supra, 759, 99 S.Ct. at 2590; Coolidge v. New Hampshire, supra, 454-55, 91 S.Ct. at 2031; Katz v. United States, supra, 357, 88 S.Ct. at 514. These exceptions provide for those situations "where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Arkansas v. Sanders, supra, 759, 99 S.Ct. at 2590.

One of the circumstances in which the constitution does not require a search warrant is where the police, under exigent circumstances, search an automobile on the street or highway based upon probable cause to believe that the vehicle contains contraband or evidence pertaining to a crime. See Arkansas v. Sanders, supra, 760, 99 S.Ct. at 2591; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Tully, 166 Conn. 126, 134-35, 348 A.2d 603 (1974). See also Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 ( (1980) ). This exception is grounded on a recognized constitutional difference between searches of and seizures from houses and similar structures and from vehicles. Cady v. Dombrowski, 413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

The United States Supreme Court has noted two essential reasons for the distinction between automobiles and other private property. "First, as the Court repeatedly has recognized, the inherent mobility of automobiles often makes it impracticable to obtain a warrant. See, e.g., United States v. Chadwick, 433 U.S. (1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) ); Chambers v. Maroney, (supra, 399 U.S. 49-50, 90 S.Ct. 1980); Carroll v. United States, supra. In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property. See Rakas v. Illinois, 439 U.S. 128, 155 (99 S.Ct. 421, 58 L.Ed.2d 387) (1978) (Powell, J., concurring); United States v. Chadwick, supra; South Dakota v. Opperman, 428 U.S. 364, 368 (96 S.Ct. 3092, 49 L.Ed.2d 1000) (1976); Cardwell v. Lewis, 417 U.S. 583, 590 (94 S.Ct. 2464, 41 L.Ed.2d 325) (1974) (plurality opinion); Cady v. Dombrowski, (supra, 441-42, 93 S.Ct. at 2528) (1973); Almeida-Sanchez v. United States, 413 U.S. 266, 279 (93 S.Ct. 2535, 37 L.Ed.2d 596) (1973) (Powell, J., concurring)." Arkansas v. Sanders, supra, 761, 99 S.Ct. at 2591.

We take up first the defendant's claim that there was no probable cause to search his vehicle. We disagree. All of the circumstances leading up to the search of the car demonstrate that there was probable cause to search the vehicle.

The car which dropped off the robber at Pepe's was described as dark in color, of an older vintage, small to medium sized, with a square front, torn back seat, and a visor down on the passenger's side. The parked car on Washington Manor matched this description. Although the parked car could not be positively identified by two witnesses to the crime as the car which had dropped off the defendant, both of the witnesses told the police that the parked car looked like the same vehicle. Also, this car was identified as the one which had previously been seen going through a stop sign without stopping, and from which Michael Celso, a known criminal, was observed alighting shortly after the robbery.

The car, unlike any other parked in the area, was parked noticeably away from the curb; the driver's door was partially open, and the driver's window was down. It was located within a short distance of the grocery store, i.e., a "matter of hundreds of yards," on Washington Manor. After committing the robbery, the robber ran in the exact direction where the car was parked.

On the basis of these...