State v. One 1977 Buick Auto.
| Decision Date | 18 June 1985 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. ONE 1977 BUICK AUTOMOBILE. |
Timothy C. Moynahan, Waterbury, for appellants (owner and operator).
Peter D. Markle, Asst. State's Atty., for appellee (state).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.
This is an appeal from a judgment declaring a 1977 Buick automobile to be a nuisance and ordering the automobile forfeited to the state. The appellants are the owner of the automobile, Joyce DeLorenzo, and the person whose alleged criminal use of the automobile led to its adjudication as a nuisance, William McNellis. The appellants claim that the judgment of forfeiture must be overturned because (1) a statutory prerequisite to forfeiture, seizure pursuant to a search warrant, was not met, (2) McNellis was unlawfully excluded from the in rem proceeding, (3) evidence obtained through an unlawful search was admitted, (4) the evidence did not support the judgment, (5) forfeiture would unduly punish the innocent owner of the vehicle, and (6) the acquittal of McNellis on related criminal charges should have barred the subsequent forfeiture action. We find no error and affirm the forfeiture order.
The trial court could reasonably have found the following facts from the conflicting evidence. As a result of a prior investigation, a warrant was issued on January 29, 1982, for the arrest of William McNellis on charges of gambling activity. On February 24, 1982, Trooper Jules Lloyd, a member of the state police then assigned to the Statewide Organized Crime Investigative Task Force, recognized McNellis as the driver of a 1977 Buick automobile traveling on Springdale Street in Meriden. There was a female passenger in the automobile with McNellis. The trooper was aware of the outstanding warrant for the arrest of McNellis and caused the Buick to be pulled over to the side of the road. Lloyd radioed his location and situation to headquarters in Meriden, and other troopers were dispatched with a copy of the arrest warrant for McNellis. Meanwhile, Lloyd approached the Buick, noticing as he did so that McNellis was partially turned away from the driver's side window of the vehicle, concealing his activities from the trooper. Lloyd informed McNellis that he had a warrant for McNellis' arrest and requested that McNellis step out of the Buick. McNellis asked to see the warrant. Lloyd repeated that he had a warrant and again asked McNellis to get out of the vehicle. At this point, McNellis, while still in the automobile, ripped up a piece of white paper and put the pieces in the Buick's glove compartment, together with what looked like a bank book. McNellis then turned to his companion, Robin McClellan, and stated either "I don't want them to fool with my books" or "I don't want them to get my books...." McNellis slammed the glove compartment door shut. McNellis eventually exited the vehicle and was arrested by Lloyd. The Buick was towed to the state police office in Meriden.
Lloyd then prepared an application for a warrant to search the Buick for gambling records. The warrant was issued, and the trooper retrieved the torn pieces of paper, and also a bank book and an address book, from the Buick's glove compartment. While a summons to the in rem proceeding was served upon both DeLorenzo and McNellis, only DeLorenzo, the owner of the car, was made a party defendant in the forfeiture action. At the trial, Trooper John Drescher testified that the torn pieces of paper found in the glove compartment constituted "a tally sheet, a record of amount(s) of money owed in connection with previously placed wagers." The trial court concluded that the Buick had been used "to store or conceal gambling records" as defined in General Statutes § 53-278a(5), which constituted criminal conduct under then General Statutes § 53-278c(e) (now § 53-278c[f]. The court adjudicated the Buick a nuisance and ordered it forfeited to the state pursuant to General Statutes § 54-33g(c). McNellis was eventually acquitted of the crimes for which he was arrested on February 24, 1982.
We first address the appellants' claim that the forfeiture order was erroneous because a statutory prerequisite to forfeiture under General Statutes § 54-33g(c), seizure pursuant to a search warrant, was not met. In this case, the car was seized when the police took McNellis into custody on an arrest warrant. After the Buick had been towed to the Meriden police station, a search and seizure warrant for gambling records was obtained, and the torn slips of paper were retrieved from the glove compartment. The in rem proceeding was then instituted. The appellants argue that, at the time of the proceeding below, General Statutes § 54-33g provided for forfeiture only of property seized "pursuant to subdivision (1) of subsection (b) of section 54-33a." 1 General Statutes § 54-33a(b)(1) provides that a judge of the Superior Court may issue a warrant permitting the search for and seizure of listed property that had allegedly been "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...." 2 While the torn tally sheet was recovered pursuant to a warrant authorizing the search of the 1977 Buick, the warrant listed as its subject gambling records, not the vehicle itself, which was already in police custody. The appellants claim that it was necessary for the police to seize the vehicle pursuant to a search warrant before attempting to confiscate it.
The case law of this state provides some support for the appellants' contention. In State v. Sabia, 1 Conn.App. 315, 471 A.2d 673 (1984), the court concluded that General Statutes § 54-33g(c), State v. Sabia, supra, 318; see also State v. Rosarbo, 2 Conn.Cir.Ct. 399, 404-407, 199 A.2d 575 (1963). Similarly, in State v. Pierro, 192 Conn. 98, 103 n. 5, 470 A.2d 240 (1984), we noted that " § 54-33g relates only to property which has been seized pursuant to a search warrant issued under General Statutes § 54-33a(b)(1)...." The 1977 Buick at issue in this case was initially seized incident to an arrest, rather than pursuant to a warrant, and the warrant that eventually did issue called only for the search of the vehicle and the seizure of any gambling records found therein, not the seizure of the car itself. We must conclude that the appellants are correct in their assertion that the provision of § 54-33g(c) creating a preliminary requirement of seizure pursuant to § 54-33a(b)(1) has not been complied with.
This does not end our inquiry, however. It would make little sense if property lawfully seized without a warrant 3 could never be forfeited simply because some alternative legal method of seizure was also available, and the legislature has mandated no such result. In State v. Anonymous (1980-8), supra, 559-60, 421 A.2d 867, the court noted that General Statutes § 54-36a, which applies to "property seized in connection with a criminal arrest" in addition to property "seized pursuant to a search warrant," provides that seized property must be returned to its owner "[u]nless such seized property is adjudicated a nuisance in accordance with section 54-33g, or unless the court finds that such property shall be forfeited or is contraband or a controlled substance...." (Emphasis added.) General Statutes (Rev. to 1979) § 54-36a(c). While this provision is not without ambiguity, we read it as authorizing the state to seek adjudication as a nuisance, and thereupon forfeiture, of all "such seized property," that phrase encompassing "property seized in connection with a criminal arrest" as well as that "seized pursuant to a search warrant." Thus General Statutes § 54-36a(c) authorizes the forfeiture in this case and instructs the courts to follow the procedures of § 54-33g in adjudicating it. This conclusion is reinforced by the legislative history accompanying a 1984 amendment to § 54-33g explicitly including in that statute property "seized as a result of a search incident to an arrest, a warrantless arrest or a search warrant...." Public Acts 1984, No. 84-540 , § 4. In explaining the need for this seeming expansion of the scope of § 54-33g to nonwarrant situations, the sponsor of the amendment appeared to be concerned about the effect of State v. Sabia, supra, when he referred to "a decision ... which changes the process of notification for the defendant and lays out certain procedures which must be followed." (Emphasis added.) 27 H.R.Proc., Pt. 15, 1984 Sess., p. 5359 (remarks of Rep. Alfred J. Onorato). The effect of the Sabia opinion, which limited forfeitures under § 54-33g(c) to property seized under a search warrant, was overturned by the amendment, which expressly made the prescribed forfeiture procedure applicable to property "seized as a result of a search incident to an arrest." We view this recent enactment as a legislative declaration of what § 54-33g(c), when read in conjunction with § 54-36a(c), was originally intended to mean. See Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985); Lee v. Board of Education, 181 Conn. 69, 74-76, 434 A.2d 333 (1980). Thus we conclude that this forfeiture action was authorized by General Statutes § 54-36a(c), and the trial court properly proceeded pursuant to the procedural directions of § 54-33g(c). 4
The appellants also claim that the trial court...
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