State v. One 1960 Mercury Station Wagon, No. CR

• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Writing for the Court: JACOBS
• Citation: 240 A.2d 99,5 Conn.Cir.Ct. 1
• Parties: STATE of Connecticut v. ONE 1960 MERCURY STATION WAGON. 5-10575.
• Decision Date: 12 January 1968
• Docket Number: No. CR

Page 99

240 A.2d 99 5 Conn.Cir.Ct. 1 STATE of Connecticut
v.
ONE 1960 MERCURY STATION WAGON. No. CR 5-10575. Circuit Court of Connecticut, Appellate Division. Argued Nov. 27, 1967.
Decided Jan. 12, 1968.

Page 100

Edward J. Caldwell, Bridgeport, for appellant Cody.

John Rose, Jr., Asst. Chief Pros. Atty., for appellee (State).

[5 Conn.Cir.Ct. 2] JACOBS, Judge.

In this proceeding, the state seeks the forfeiture of the automobile of John W. Cody. The automobile is described as a white 1960 Mercury station wagon bearing Connecticut registration No. UM-358 and was allegedly used as a device in the commission of the crime of policy playing in contravention of § 53-298 of the General Statutes. Due notice of the seizure and intended forfeiture was directed to the registered owner of the vehicle as provided for in § 54-33g of the General Statutes, ¹ and

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we shall refer to him as the defendant. He filed an answer to the in rem proceeding in which he admitted ownership of the automobile but denied that it was a nuisance and that 'he knowingly kept * * * (the vehicle) with intent to violate or in violation of the criminal laws of the State of Connecticut.' And by way of special defense, he alleged that '(t)he search warrant under which the defendant's vehicle was seized was inadequate for the purpose of this proceeding in that it fails to list said vehicle as property for which a search was to be made.'

[5 Conn.Cir.Ct. 3] The evidence is undisputed and conclusively establishes the following facts: On March 30, 1967, Sergeant Morton Denerstein, a member of the state police department assigned to the criminal intelligence unit, observed one Gullette using the Mercury station wagon to make stops at different locations for the purpose of carrying on or engaging in gambling activities. Accordingly, on that date, an application, supported by affidavit, was made for a search and seizure warrant and presented to a judge of the Circuit Court for authority to search 'a 1960 Mercury station wagon, color white, bearing Conn. Reg. UM-358, listed to John W. Cody, 42 Louis St., Trumbull, Conn.,' and for 'slips tokens, papers, books, wagers, bets, policy bets, records or registers of bets or wagers, appliances or apparatus used for such purpose, monies, records and other gambling paraphernalia (which) is possessed, controlled, designed or intended for use as a means of committing the crime of policy (playing) in violation of § 53-298 of the General Statutes.' The judge before whom the application was made was satisfied that grounds [5 Conn.Cir.Ct. 4] existed for the application and found probable cause for the issuance of the search and seizure warrant. On March 31, 1967, at a parking lot adjacent to Barker's Department Store, in the city of Bridgeport, police officers observed a female passenger in another vehicle pass a white envelope to the operator of the white Mercury station wagon, and, acting under the authority of the warrant, the officers searched the station wagon and found one brown paper package containing thirty-seven policy slips. The operator and sole occupant of the station wagon was Gullette. He was arrested and was subsequently convicted of the crime of policy playing. At the time of the execution of the warrant, in addition to the package containing policy slips the police officers seized the vehicle. Gullette's function was that of a 'pick-up man,' and the use of an automobile is an essential part of the overall gambling operation. In the argot of the gambling world, the term 'pick-up man' is applied to the person who serves as a conduit in transporting the bets from a 'writer' to a 'banker.' ²

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It is clear from the finding that the defendant voluntarily entrusted possession of his automobile to Gullette, although the defendant had no knowledge, and no reason to believe, that the automobile would be used for any purpose in violation of our laws. The trial court, after a full hearing, found [5 Conn.Cir.Ct. 5] that the defendant's automobile was being used as a device to enable Gullette to carry out his function as an integral part of the wagering operation although the defendant 'did not know of his knowledge the occupation of said Gullette.' The court concluded that the vehicle was a nuisance, ordered its confiscation, and declared it to be the property of the state.

The assignment of errors presents three basic issues: (1) whether the defendant, as owner, has the requisite standing to raise infirmities, if any, in the search and seizure warrant; (2) whether lack of knowledge on the part of the defendant of the use to which his automobile was put is immaterial; and (3) the construction to be given to the italicized portion of § 54-33g. ³

I FORFEITURE PROCEEDINGS

'The point of beginning is an understanding of the nature of a forfeiture. J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921) makes clear that the * * * (state), in the exercise of its constitutional power, has long imposed responsibilities on the owners and other persons having interests in particular personal property, in aid of the administration of criminal law, by ascribing to such property itself 'a certain personality, a power of complicity and guilt in the wrong' (254 U.S. at 510, 41 S.Ct. at 191). Mr. Justice McKenna pointed out that such legislation finds an analogy in 'the law of deodand by which a personal chattel that was the immediate cause of the death of any reasonable creature was forfeited' (254 U.S. at 510, 41 S.Ct. at 191). Blackstone was cited in J. W. Goldsmith, Jr.-Grant and his reference[5 Conn.Cir.Ct. 6] to the Mosaical law was quoted: 'If an ox gore a man that he (shall) die, the ox shall be stoned, and his flesh shall not be eaten.' It was also there noted that Blackstone made reference to the equally ancient Athenian law which provided that 'whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic' (254 U.S. at 511, 41 S.Ct. (189) at 191). When this ancient concept is recalled, our understanding of the law of forfeiture of chattels is more easily understood.' United States v. One 1963 Cadillac Coupe de Ville Two-Door, 250 F.Supp. 183, 185. 'Forfeiture of vehicles,' said Mr. Justice Cardozo in General Motors Acceptance Corporation v. United States, 286 U.S. 49, 56, 52 S.Ct. 468, 470, 76 L.Ed. 971, '* * * is one of the time-honored methods adopted by the Government for the repression of * * * crime * * *,' and he added (p. 57), 52 S.Ct. p. 471: 'The penalty is at times a hard one, but it is imposed by the statute in terms too clear to be misread.' See also Holmes, The Common Law, pp. 24-25.

The statute we are considering, § 54-33g, 'is not a criminal statute, but provides

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for a civil action in rem for the condemnation and...