State v. One 1960 Mercury Station Wagon, CR

Citation240 A.2d 99,5 Conn.Cir.Ct. 1
Decision Date12 January 1968
Docket NumberNo. CR,CR
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
PartiesSTATE of Connecticut v. ONE 1960 MERCURY STATION WAGON. 5-10575.

Edward J. Caldwell, Bridgeport, for appellant Cody.

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

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 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 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

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.'

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 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 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 II

for a civil action in rem for the condemnation and forfeiture of the car which was used in violation of the law. Pickett, Prosecuting Attorney v. Antonio Marcucci's Liquors (112 Conn. 169, 151 A. 526) supra. In such an action the guilt or innocence of the owner of the vehicle is not in issue. The only issue is whether the vehicle was used in violation of law. This follows from the nature of the action, which is one against the res, an action in rem.' Alcorn v. Alexandrovicz, 112 Conn. 618, 623, 153 A. 786, 787; see State v. Rosarbo, 2 Conn.Cir.Ct. 399, 402, 199 A.2d 575; 37 C.J.S. Forfeitures § 5e; 23 Am.Jur., Forfeitures and Penalties, § 6. 'Overwhelming authority unequivocally holds that the essential facts must be established by a preponderance of the evidence and not beyond a reasonable doubt.' One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467, 469.

STANDING

'Familiar to all lawyers is the requirement of standing to raise a constitutional issue.' Edwards, 'Standing to Suppress Unreasonably Seized Evidence,' 47 Nw.U.L.Rev. 471; see State v. Schaffel, 4 Conn.Cir.Ct. 234, 245, 229 A.2d 552; notes, 96 L.Ed. 66, 70; 78 A.L.R.2d 246, 255. 'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of the evidence gathered as a consequence of a search or seizure directed at someone else.' Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, 'Immunity from unreasonable search, guaranteed by the Fourth Amendment, is a personal right.' Coon v. United States, 10 Cir., 36 F.2d 164, 165. 'The immunity of the Fourth Amendment may not be invoked by the claimants because they were not the victims of the unlawful search and seizure. The immunity is personal and may be invoked only by the person whose rights are invaded.' United States v. One 1948 Cadillac Convertible Coupe, D.C., 115 F.Supp. 723, 728. '(T)he federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized.' Goldstein v. United States, 316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312; 4 see Jeffers v. United States, 88 U.S.App.D.C. 58, 187 F.2d 498, 500.

As the rights of the defendant were not invaded, he cannot complain. 'He cannot vicariously assert the constitutional rights of others who do not complain.' Curry v. United States, 5 Cir., 192 F.2d 571, 572.

We hold that the defendant lacks the requisite standing to raise infirmities, if any, in the search and seizure warrant.

III

INNOCENCE OF THE OWNER

In United States v. One 1940 Packard Coupe, D.C., 36 F.Supp. 788, 790, the District Court, in considering a libel for the forfeiture of counterfeit coins, said: 'This is a proceeding in rem, against the car, in which the law ascribes to it a power of complicity and guilt in the offense. And in light of the authorities, it is now too late to attempt a construction of the statutes here involved as exempting from forfeiture the interest of a person in a chattel for the reason that he was guiltless. It is no longer...

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