State v. Towles

Citation235 A.2d 639,155 Conn. 516
CourtSupreme Court of Connecticut
Decision Date09 November 1967
PartiesSTATE of Connecticut v. Leroy TOWLES.

Thomas F. Keyes, Jr., New Haven, for appellant (defendant).

George R. Tiernan, State's Attorney, for appellee (state).

Before ALCORN, HOUSE, THIM, RYAN & COVELLO, JJ.

HOUSE, Associate Justice.

The defendant was found guilty by a jury of possessing and selling a narcotic drug, marihuana, in violation of § 19-246 of the General Statutes. Before the trial, he filed a motion to suppress evidence consisting of two marked $5 bills, claiming that that evidence was obtained as the result of an illegal search of the defendant made at the time of his arrest. On this appeal, he claims error in the court's denial of that motion, error in a subsequent ruling of the court admitting into evidence, during the trial, the currency and a plastic bag containing packets of marihuana, error in the court's cenial of his motion for a mistrial, and error in rulings excluding certain evidence. Other assignments of error relating to the court's denial of the defendant's motions to dismiss the information and to discharge the defendant have not been briefed and are considered abandoned. State v. Stallings, 154 Conn. 272, 276, 224 A.2d 718; Labbadia v. Bailey, 152 Conn. 187, 190, 205 A.2d 377.

The defendant's motion to suppress the marked bills found on him at the time of his arrest was predicated on a claim that the evidence was seized illegally, without a warrant or other authority of law. More particularly the defendant claims that his arrest without a warrant was illegal, and hence that the search of his clothing during the arrest was illegal and that the evidence consisting of the two bills taken from his person should have been suppressed. On such a motion the defendant had the burden of proof. State v. Mariano 152 Conn. 85, 91, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962. Pursuant to § 54-33f of the General Statutes, the court, before trial and in the absence of the jury, received evidence necessary to the decision on the motion. Its special finding of facts relating to the motion has not been attacked

That finding discloses that on March 20, 1965, a group of detectives from the special service division of the New Haven police department, which handles crimes involving vice, narcotics and gambling went, dressed in civilian clothes, to the area of Legion Avenue and Orchard Street in New Haven. There were four officers in the group, Gleason, DeRosa, Lee and Ahern. Their assignment was the investigation of narcotics traffic and particularly the activities of the defendant in that field. They carried portable radios for quick communication with each other and took up various positions in the area of the Beacon Grille, which was on the northwest corner of Legion Avenue and Orchard Street. Gleason gave to Robert Hamrick two marked $5 bills with which to make a purchase of marihuana. From his position, DeRosa, who knew the defendant, observed the defendant leave the grille with Hamrick and Bernard J. Wynkoop and walk west on Legion Avenue. The three men entered an alley next to premises known as 313 Legion Avenue, and DeRosa saw the defendant pick up something from the ground in the presence of Hamrick and Wynkoop, both of whom, after a few minutes, came out of the alley and returned to the grille, while the defendant proceeded to walk west on Legion Avenue toward Greenwood Street. DeRosa was thereafter notified by portable radio that Hamrick and Wynkoop had been arrested and were in possession of marihuana, and he was instructed to arrest the defendant. DeRosa arrested the defendant, who was then walking east on Legion Avenue, searched him and found on his person the two marked $5 bills which had been given to Hamrick. On these facts the court denied the motion to suppress, concluding that the search of the defendant's person was incident to a valid arrest, that he was arrested on the speedy information of other officers, that the arresting officer had reasonable ground to believe that the defendant had committed or was committing a felony, and that the search was not violative of his constitutional rights.

The crime with which the defendant was charged is a felony. General Statutes §§ 1-1, 19-265; Martyn v. Donlin, 151 Conn. 402, 410, 198 A.2d 700. A legal arrest may be made without a warrant when the person is taken or apprehended in the act or on the speedy information of others or when the police officer has reasonable grounds to believe that he has committed or is committing a felony. General Statutes § 6-49. As we observed in State v. Elliott, 153 Conn. 147, 152, 215 A.2d 108: "An accused is lawfully 'taken or apprehended in the act' if the circumstances observed by the officer preceding the arrest, viewed in the light of common knowledge and his own training and experience, gave him probable cause to believe that a crime was being, or had just been, committed.' State v. DelVecchio, 149 Conn. 567, 575, 182 A.2d 402, 406. The amount of evidence necessary to furnish probable cause for an arrest without a warrant is to be measured by the facts of the particular case, and it need not be evidence sufficient to convict. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441.' 'Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony had been committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142.' State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75, 76; see also State v. Allen, 155 Conn. --, 232 A.2d 315; McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62; Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327. Under all the circumstances desclosed in the finding, the court could reasonably and logically conclude that DeRosa had probable cause to arrest the defendant without a warrant and that the arrest was lawful.

'A reasonable search which is incident to a lawful arrest is not unlawful even though it is conducted without a search warrant. State v. Hassett, 155 Conn. 225, 232, 230 A.2d 553; State v. Elliott, 153 Conn. 147, 152, 215 A.2d 108; State v. Collins, 150 Conn. 488, 492, 191 A.2d 263.' State v. Allen, supra, 10, 320. We find no error in the conclusion of the trial court that under the circumstances the search of the defendant's person was a legal search made incident to a valid arrest, and the defendant was not entitled to an order suppressing the two marked $5 bills disclosed by the search of his person.

During the trial of the case, the court, over the defendant's objection, admitted into evidence for the jury's consideration the two marked $5 bills and a plastic bag containing three packets of marihuana. These two rulings have been assigned as error, and in connection with these claims it is necessary to refer to other facts in addition to those already mentioned as found by the court from the evidence taken regarding the motion to suppress. These additional facts are taken from the court's unattacked finding as to what occurrd at the trial.

At the trial the state produced Wynkoop as a witness. In brief, he testified that in the Beacon Grille the defendant...

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