State v. Penna
| Decision Date | 03 February 1967 |
| Docket Number | Nos. CR,s. CR |
| Citation | 5 Conn.Cir.Ct. 44,241 A.2d 385 |
| Parties | STATE of Connecticut v. Richard PENNA. STATE of Connecticut v. James TERRELL. 6-43782, CR 6-43783. |
| Court | Connecticut Circuit Court |
Philip E. Mancini, Jr., Pros. Atty., for the state in both cases.
Frank W. Sledziona, New Haven, for defendant, Penna.
Ira B. Grudberg, New Haven, for defendant, Terrell.
The issues involved in these cases are identical. They were heard and argued together and may be disposed of in a single opinion. Both defendants are charged with violations of § 53-216 (sodomy) and § 53-217 (indecent assault).
The defendants' motions to suppress arise under § 54-33f 1 of the General Statutes. A motion to suppress is a statutory proceeding which was established following State v. Fahy, 149 Conn. 577, 582, 183 A.2d 256, rev'd on other grounds, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, where our Supreme Court recognized that the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was applicable to state practice. Prior to the enactment of § 54-33f, there was no such motion in Connecticut criminal procedure or at common law. See State v. Mariano, 152 Conn. 85, 89, 203 A.2d 305. Thus, if the defendants have a procedural remedy, as claimed, it must arise under § 54-33f.
Section 54-33g was enacted in 1963 to replace § 54-33. Public Acts 1963, No. 652 § 8. Section 54-33a(a) provides that 'property,' as used in §§ 54-33a to 54-33g, 'includes, without limitation, documents, books, papers, films, recordings and any other tangible thing.' A reading of § 54-33f leads to the conclusion that the only clause applicable to these cases is § 54-33f(1), which provides, as one of the grounds of suppression, that the 'property was seized without a warrant.' Thus, there is a real question whether these defendants may claim a remedy under § 54-33f.
But even if § 54-33f can have no application to the cases at bar, the state has acquiesced in its use; see State v. Mariano, supra; and since the hearing on the motions was properly held, the court must decide (1) the issue of the applicability of § 54-33f, and (2) the substantive issues raised during the hearing and in the briefs.
Turning for a moment to the applicability of § 54-33f, there are three alternatives: (1) The legislature enacted a definition of property (§ 54-33a (a)) which was to apply to § 54-33f. Here, of course, the suppression must refer to the words 'tangible things.' In the context of §§ 54-33a to 54-33g, and according to general notions of jurisprudence, testimony or information is not a 'tangible thing.' (2) Section 54-33f is for all practical purposes a verbatim adoption of Rule 41(e) of the Federal Rules of Criminal Procedure. Hence, it could be argued that the federal notions of suppressible material should be imported into § 54-33f in order to arrive at a proper interpretation. In 1961, in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, the court for the first time reversed a conviction obtained with the assistance of electronic eavesdropping. The case concerned eavesdropping by police on conversations in the headquarters of a Washington, D.C., gambling venture by means of a 'spike mike'-a microphone with a foot-long spike attached. We may therefore reasonably conclude that the remedy provided for under § 54-33f covers material broader in scope than the other sections, which are obviously applicable only to 'tangible things.' (3) And finally there is a statement in State v. Mariano, supra, 152 Conn. 90, 203 A.2d 305, to the effect that the trial court is vested with a broad discretion in determining what issues should be tried. Broadly interpreted, this may mean that the hearing on the motion to suppress is in effect an expedient means for adjudicating suppressible material which may be offered at trial.
The defendants moved to suppress testimony by police officers concerning information they gained in what is alleged to have been an illegal search and seizure. The motion arises under § 54-33f(1), which provides for suppression on the ground that '(t)he property was seized without a warrant.' The state concedes there was no warrant in these cases. But it is settled law that '(a) reasonable search which is incident to a lawful arrest is not unlawful even though it is made without a warrant.' State v. Elliott, 153 Conn. 147, 152, 215 A.2d 108, 111; State v. Collins, 150 Conn. 488, 492, 191 A.2d 253; State v. Towry, 26 Conn.Sup. 35, 210 A.2d 455. Thus, we are impelled to ask: Was this a search? And was this a lawful arrest?
To find a search, there must be an interference with or an invasion of person or property. In Silverman v. United States, supra, 365 U.S. 511, 81 S.Ct. 682, the court found that the police had encroached upon a constitutionally protected area when they gained evidence by overhearing the defendant's conversations 'by usurping part of the petitioners' house or office.' In a California case similar to the cases at bar, People v. Alvarez, 236 Cal.App.2d 106, 45 Cal.Rptr. 721, police officers were told by an informer where to find stolen goods, and the officers saw one of the stolen television sets through the door of the defendant's house when his wife opened the door to talk to the police. The court held that there was no search. The court said (p. 112, 45 Cal.Rptr. p. 725): 'A search implies a prying into hidden places for something that is concealed, something that has been intentionally put out of the way.' See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (); United States v. Romano, 2 Cir., 330 F.2d 566, cert. denied, 380 U.S. 942, 85 S.Ct. 1020, 13 L.Ed.2d 961.
In the cases at bar, we find no prying or usurpation. Also, the present cases are distinguishable from the cases cited in defendants' brief. In McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, decided in 1948, police officers gained access to a rooming house, where they believed an illegal lottery was being operated, by unlawfully climbing into the landlady's quarters, and they observed defendant's conduct by climbing on a chair and peeping through the transom of McDonald's room. Clearly, therefore, where officers are unlawfully on the premises within the curtilage, anything they see, even if in plain view, may not be seized. Nor may the officers testify as to what they have seen. Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487; McGinnis v. United States, 1 Cir., 227 F.2d 598. In People v. Regalado, 224 Cal.App.2d 586, 36 Cal.Rptr. 795, the officer used an uncapped overhead pipe to view the defendant's conduct in a toilet; in Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, the officers drilled a hole in the door of the defendant's cell; in Whitley v. United States, 99 U.S.App.D.C. 159, 237 F.2d 787, the court found the arrest was not legal; and in Smayda v. United States, 9 Cir., 352 F.2d 251, a hole was cut in the roof of a toilet house to view the defendant's behavior. Here, no unusual method or device was used. The officers simply observed the defendants' conduct through an open window.
The defendants argue that the officers trespassed and invaded their privacy when they stood outside the window. In State v. Plummer, 5 Conn.Cir. 35, 241 A.2d 198, the Appellate Division of this court relied on Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142, and United States v. St. Clair, 2 Cir., 240 F.Supp. 338, to find that officers on a fire escape outside the defendant's window were licensees and did not invade a constitutionally protected area. We think the same reasoning is also applicable here. The area outside the window was in the nature os a common corridor, public hallway, landing or stairwell. See United States v. St. Clair, supra, 340.
This court reaches the conclusion that the officers' actions did not constitute a search; and even if it was a search, it would have been a search incident to a lawful arrest.
It is true, of course, that if the officers' action was a search it was made immediately prior to the arrest. But in State v. Elliott, 153 Conn. 147, 153, 215 A.2d 108, the Supreme Court adhered to the rule in State v. Reynolds, 101 Conn. 224, 229, 125 A. 636, 638: '(I)f the general rule had required the arrest before the search we should think it far too technical an application of the rule to hold that this search was unlawful because it preceded the arrest by an appreciable moment of time.' Thus, the rule in this state seems to be that the search incident to a lawful arrest may precede the arrest itself. State v. Elliott, supra. The Supreme Court of the United States, in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10...
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State v. Darwin
...v. United States, 4 Cir., 297 F.2d 356. A similar conclusion was reached on statutory grounds by our own Circuit Court in State v. Penna, 5 Conn.Cir. 44, 241 A.2d 385, and on nonstatutory grounds by our Supreme Court in State v. Mariano, supra. Furthermore, in the present case, both the sta......
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State v. Shaw, CR
...To prove a search, there must be a clearly established interference with, or invasion of, defendant's property. State v. Penna, 5 Conn.Cr.Ct. 44, 47, 241 A.2d 385. Based on the facts before the court, it is found that defendant did not casually throw away the newspaper and pen with the inte......
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