State v. One 1981 BMW Auto., 5566

• Decision Date: 23 August 1988
• Docket Number: No. 5566,5566
• Citation: 15 Conn.App. 589,546 A.2d 879
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. ONE 1981 BMW AUTOMOBILE.

Page 879

546 A.2d 879

15 Conn.App. 589

STATE of Connecticut v. ONE 1981 BMW AUTOMOBILE.

No. 5566.

Appellate Court of Connecticut.

Argued Nov. 13, 1987.

Decided Aug. 23, 1988.

John M. Massameno, Asst. State's Atty., with whom was Roseanne Wagner, Legal Intern, for appellant (state).

Joseph F. Keefe, with whom, on the brief, was David A. Moraghan, Torrington, for appellee (defendant owner).

Before BORDEN, BIELUCH and EDWARD Y. O'CONNELL, JJ.

EDWARD Y. O'CONNELL, Judge.

The state appeals from the judgment of dismissal of an in rem forfeiture action brought pursuant to General Statutes § 54-33g. ¹ The state claims that the trial court erred (1) in finding that the information contained in the search and seizure warrant underlying this action was "stale" and did not support a determination of probable cause, and (2) in holding that the in rem action could not be sustained without an allegation of criminal activity on behalf of the vehicle's owner. We find error.

The factual background of this case is long and convoluted. In 1985, the state's first attempt to have this vehicle forfeited ended with a decision by this court that those proceedings were invalid for lack of personal jurisdiction. State v. One 1981 BMW Automobile, 5 Conn.App. 540, 500 A.2d 961 (1985) (BMW I ). The sequence of events leading up to BMW I are detailed in that opinion and will not be repeated here. Significant developments subsequent to the earlier decision are as follows. On January 9, 1986, slightly more than one month after the decision in BMW I, a second search and seizure warrant was issued for the seizure of the BMW. The vehicle was seized by the state police the following day and a summons was served on the defendant, Daniel D. Skuret, the current owner of the automobile. ² A summons was also served on Russell Kuskowski who was the BMW's record owner at the time of the initiation of BMW I and who was represented to be its owner when BMW I was argued in this court. Kuskowski had been represented at those proceedings, as well as in the criminal charges brought against him at that time, by Skuret, who is a member of the Connecticut bar. Subsequent to his arrest on the criminal charges, Kuskowski assigned his interest in the BMW to Skuret in payment of legal fees. The propriety of this transfer will be discussed in greater detail in part IV of this opinion, infra. Because Kuskowski no longer had an interest in the automobile, the trial court dismissed the present action as to him.

On January 17, 1986, the defendant appeared and filed a motion to dismiss the action claiming, inter alia, that (1) the search and seizure warrant was not based on probable cause due to its reliance on four year old information, and (2) at the time the warrant was executed, there was no allegation of criminal activity on the part of the defendant, the vehicle's current owner. The court granted the motion and dismissed the forfeiture action. ³ The state has appealed.

I

The state's first claim of error involves the court's determination that the search and seizure warrant issued was not grounded in probable cause because the affidavit concerned activities that had occurred in 1982, and had grown "stale" by January, 1986, when the second warrant was executed. The state argues that an allegation that property has been used in the commission of a crime cannot become stale. We agree.

Under both state and federal constitutional law, a search and seizure warrant shall not issue but upon probable cause. U.S. Const., amend. IV; Conn. Const., art. I § 7. " ' "Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states. Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, [1629], 10 L.Ed.2d 726 [1963]." ' State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972); see State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965)." State v. Bember, 183 Conn. 394, 409, 439 A.2d 387 (1981).

"We have stated that '[p]robable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.' State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980)." (Emphasis omitted.) State v. Ferguson, 185 Conn. 104, 111, 440 A.2d 841 (1981). Thus, a finding of probable cause to search involves a bipartite analysis and adequate information is required for each determination. See State v. DeChamplain, supra.

To fulfill these requirements, the state included information in its warrant and supporting affidavit to the effect (1) that the vehicle sought to be seized "had been used" as the means of committing the crime of "Possession of Cocaine with Intent to Sell, § 21a-277(a) [and] Sale of Cocaine, § 21a-277(a)," and (2) that the vehicle could be found at an automotive repair business located in Ansonia or in the possession of the owner, Skuret. The issuing judicial authority found these allegations supported by facts set forth in the warrant application and sufficient to establish probable cause. ⁴

The trial court found the allegations of the criminal use of the vehicle to be stale. There is no claim of a contemporaneity problem with the second prong of the inquiry, i.e., the information regarding the locus of the property at the time of the execution of the warrant.

The staleness doctrine involves the concept that the passage of time can diminish the reliability of information provided in a search warrant request. See State v. Carbone, 172 Conn. 242, 250, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977). The doctrine, however, concerns itself with the ilocation of the items to be seized and the likelihood that those items are located in the place alleged by the warrant application. See, e.g., Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Durham v. United States, 403 F.2d 190, 193-94 n. 3 (9th Cir.1968); see also State v. Carbone, supra; State v. Garcia, 7 Conn.App. 354, 356, 508 A.2d 824 (1986); State v. Burgos, 7 Conn.App. 265, 269-70, 508 A.2d 795 (1986).

In many circumstances, the passage of time may affect the likelihood that the items sought have been moved. ⁵ In the present case there is no question of the timeliness of the information in the affidavit regarding the current locus of the automobile. ⁶

We conclude, however, that the trial court's application of the staleness doctrine to the first prong of the probable cause analysis, (i.e., the connection between the property and the alleged criminal activity) was misguided.

Where, as here, facts have been alleged which constitute probable cause that certain events have taken place, the mere passage of time cannot diminish that conclusion. Stale does not simply mean old. An analogy can be drawn between the first prong of the probable cause analysis for a search warrant and the probable cause analysis for an arrest warrant. ⁷ Just as probable cause to arrest, once found, cannot be dissipated by the passage of time, probable cause to believe that property has been used in connection with a crime similarly cannot be diminished. ⁸ We hold that, under the facts of this case, the trial court erred in applying the staleness doctrine to the first prong of the probable cause analysis. ⁹

II

The state also contends that the trial court erred in concluding that, without an allegation of the defendant's involvement in criminal activity, the forfeiture action could not lie. We agree.

"General Statutes § 54-33g 'provides for a civil action in rem for the condemnation and forfeiture of the [property] which was used in violation of the law.... In such an action the guilt or innocence of the owner of the [property] is not in issue. The only issue is whether the [property] was used in violation of law. This follows from the nature of the action which is one against the res, an action in rem.' State v. Bucchieri, 176 Conn. 339, 345, 407 A.2d 990 (1978), quoting Alcorn v. Alexandrovicz, 112 Conn. 618, 623, 153 A. 786 (1931)." (Emphasis in original.) State v. Connelly, 194 Conn. 589, 592, 483 A.2d 1085 (1984).

This rule may indeed be harsh in some situations and, to counteract its claimed unfairness, certain exceptions to the rule have been made and constitutional protections often have been invoked. For example, the statute itself provides an exception to forfeiture for the holder of a "bona fide mortgage, assignment of lease or rent, [or of a] lien or security interest." General Statutes § 54-33g(c). See footnote 1, supra. In addition, the United States Supreme Court has noted two instances where a forfeiture statute may violate the due process rights of the property's owner: " '[I]t would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent.... Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property....' State v. Connelly, supra [194 Conn. at] 593 n. 4 ." State v. One 1977 Buick Automobile, 196 Conn. 471, 486, 493 A.2d 874 (1985), quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974).

The status of the defendant in the present case does not bring him within any of the elucidated exceptions nor within any other exception of which we can conceive. In fact, as the recipient of Kuskowski's interest in the automobile, at a...