State v. Pepe

• Decision Date: 05 September 1978
• Citation: 176 Conn. 75,405 A.2d 51
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Peter PEPE.

Page 51

405 A.2d 51

176 Conn. 75

STATE of Connecticut v. Peter PEPE.

Supreme Court of Connecticut.

Argued April 5, 1978.

Decided Sept. 5, 1978.

Alan E. Silver, New Haven, with whom, on the brief, were Stuart M. Ketaineck, Michael R. O'Connor and Michael Wolak III, New Haven, for appellant (defendant).

William F. Gallagher, Sp. Asst. State's Atty., with whom on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

SPEZIALE, Associate Justice.

The defendant, Peter Pepe, has appealed from a judgment rendered on a jury verdict finding him guilty of receiving and concealing stolen goods. He claims that the trial court erred: (1) in refusing to suppress items seized during the course of a search of his premises; and (2) in permitting cartons containing seized items to be present in the courtroom in full view of the jury, and marked as exhibits for identification. We do not agree.

The underlying facts are not in dispute. In February, 1969, the police obtained a search warrant for the person and home of Pepe. The articles specified in the warrant were narcotics. The officer in charge of executing the warrant first went to Pepe's place of business, identified himself, showed Pepe the warrant, and searched his person. Several police officers then accompanied Pepe to his home. The house in which Pepe resided had two apartments, one on the first floor, occupied by Pepe's mother, and one on the second floor, occupied by Pepe and his family. The third floor was an attic, which was used for storage purposes by the occupants of the house.

After thoroughly searching the second-floor apartment for narcotics, the police told Pepe that they wanted to go up to the third floor. In their presence, Pepe produced a key and unlocked the door leading to the third-floor staircase. The attic consisted of two rooms, one locked and the other unlocked. At the request of the police, Pepe got the key and unlocked the locked room. Inside this room, the police found boxes of cosmetics, perfume, aftershave lotion and talcum powder, along with cigarette lighters, a wrist watch, a television set and other items. Some of the items had stickers bearing the name Chapel Drug Store, some bore price tags with the names of other stores, and many of the tags were whole. Most of the items appeared to be new; they were for the most part in cartons, neatly piled, and had not been removed from their original boxes. These items, along with others which the police had reason to believe might be stolen, were seized and taken to police headquarters to be checked against serial numbers from known burglaries.

The defendant subsequently filed a motion to suppress the seized evidence, which motion was denied by the court (Shapiro, J.). The motion was renewed at trial and again denied by the trial court (A. Healey, J.). The denial of these motions is the basis of the defendant's first claim of error. The thrust of his argument is that the absence of any reference to stolen goods in the search warrant rendered the seizure of such items a violation of his constitutional right to be free from unreasonable searches and seizures. U.S.Const., amend. 4; Conn.Const., art. 1, § 7.

The defendant does not challenge the validity of the search warrant, nor does he contend that the search exceeded the scope of the warrant, which provided for a search of "(t)he person of Peter A. Pepe . . . his place of abode, 422 West Rock Ave., 2nd floor, the cellar & attic portion controlled by Peter Pepe." Instead, he urges that because the police had reason to believe that they would find such items on the premises and intended to seize them, the failure to mention stolen goods in the warrant was a violation of the constitutional requirement that a search warrant particularly describe the things to be seized. Coolidge v. New Hampshire, 403 U.S. 443, 471, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927). In support of this claim, the defendant stresses the following: After the warrant to search for narcotics had been issued but about an hour before it was actually executed the officer in charge of the search received a tip that stolen items had been seen on the defendant's premises. This officer knew of the defendant's reputation for dealing in stolen goods, and knew that Pepe had previously been arrested for possession of stolen goods. The officer also knew that the Chapel Drug Store had been broken into in November, 1968, that cosmetics, perfumes and watches had been stolen, and that the merchandise had not been recovered. Thus, the defendant argues, the narcotics warrant was used to camouflage an exploratory search for stolen goods. Under the circumstances of this case, we find that this claim cannot be supported.

While it is true that general searches are condemned and that police executing a search warrant may seize only those items specified in the warrant; e. g., Marron v. United States, supra; the long recognized exception to this rule is that " 'where a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character, the property is seizable under the plain view doctrine.' United States v. Pacelli, 470 F.2d 67, 70 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973), citing Coolidge v. New Hampshire, 403 U.S. 443, 465, 514-16, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)." United States v. Canestri, 518 F.2d 269, 274 (2d Cir. 1975); United States v. Rollins, 522 F.2d 160, 166 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976); State v. McClain, 171 Conn. 293, 297, 370 A.2d 928 (1976); 68 Am.Jur.2d, Searches and Seizures, §§ 85, 88; see also State v. Krause, 163 Conn. 76, 81-83, 301 A.2d 234 (1972).

The plain view exception will thus validate a seizure of items not specified in a warrant where the initial intrusion is lawful, the discovery of the evidence inadvertent, and the seizing officers have reason to believe that the seized items are evidence of a crime.

In the case before us, the first condition the lawfulness of the initial intrusion is clearly met, since the police were operating within the scope of a valid warrant. The defendant argues, however, that the discovery was not "inadvertent" because the police were forewarned that they might find stolen goods on the premises. In so arguing, the defendant misconstrues the requirement of inadvertency. The police need not be caught...