State v. Walczyk

• Citation: 76 Conn. App. 169,818 A.2d 868
• Decision Date: 08 April 2003
• Docket Number: (AC 22055).
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. THOMAS WALCZYK.

76 Conn. App. 169

818 A.2d 868

STATE OF CONNECTICUT v. THOMAS WALCZYK.

(AC 22055).

Appellate Court of Connecticut.

Argued February 11, 2003.

Officially released April 8, 2003.

Lavery, C. J., Schaller and Peters, Js.

Jon L. Schoenhorn, with whom, on the brief, was Matthew D. Dyer, certified legal intern, for the appellant (plaintiff).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Mark W. Brodsky, senior assistant state's attorney, for the appellee (state).

Opinion

PETERS, J.

This appeal concerns the validity of a search warrant that produced evidence of violations of General Statutes § 29-37i,¹ which penalizes the improper storage of firearms to which children might have access. The warrant was issued to obtain evidence of the crime of threatening under General Statutes (Rev. to 1999) § 53a-62,² but the defendant was acquitted of that charge. A valid warrant would nonetheless have authorized the seizure of the defendant's firearms, which were in plain view when the police conducted their search. We must decide whether there was probable cause to issue the search warrant to obtain evidence of threatening. We conclude that there was not. We therefore reverse the judgment of the trial court convicting the defendant of two violations of § 29-37i and order repayment of the fines that the defendant was ordered to pay.

This case has a convoluted procedural history. As the result of a conversation between a police officer and the defendant, Thomas Walczyk, the state filed a ten count information against him. The state charged the defendant with risk of injury to a child under General Statutes (Rev. to 1999) § 53-21.³ The trial court acquitted him of that charge. The state also charged him with threatening under § 53a-62. The jury acquitted him of that charge. Further, the state charged him with disorderly conduct under General Statutes (Rev. to 1999) § 53a-182 (a) (2)⁴ and reckless endangerment under General Statutes § 53a-64.⁵ Although the jury found him guilty of those charges, the state now concedes it produced insufficient evidence to support the conviction on those charges. The state asks us to affirm the conviction only on two charges of violating the improper firearm storage statute. Although the state charged the defendant with six violations, arising out of the defendant's possession of the six firearms listed in the search warrant, the court found him guilty of only two.⁶ The court sentenced him to pay a fine of $100 for each of these charges, and the defendant appeals.

I

The first issue that we must address is whether this appeal has become moot because the defendant appears to have paid the fines arising out of his conviction under § 29-37i. There are no longer any other outstanding charges against him. Under General Statutes § 54-96a,⁷ payment of fines before an Appellate Court hearing "shall vacate the appeal and restore the judgment [of the trial court]." We asked counsel to address whether this case has become moot because we can no longer afford the defendant any practical relief. "[A]n appeal is considered moot if there is no possible relief that the appeals court can grant to the appealing party, even if the court were to be persuaded that the appellant's arguments are correct." Wallingford Center Associates v. Board of Tax Review, 68 Conn. App. 803, 807, 793 A.2d 260 (2002); see also Hilton v. New Haven, 233 Conn. 701, 726, 661 A.2d 973 (1995). If a case has become moot, we lack subject matter jurisdiction to address its merits. See Loisel v. Rowe, 233 Conn. 370, 377-78, 660 A.2d 323 (1995); Grimm v. Grimm, 74 Conn. App. 406, 411, 812 A.2d 152 (2002).

At oral argument before this court, counsel for the defendant argued that the appeal is not moot because the defendant had paid the fines involuntarily. He represented that the defendant had been required to pay the fines as a special condition of his probation, which the court had imposed in conjunction with his trial court conviction of disorderly conduct and reckless endangerment. The state has not challenged the accuracy of the defendant's representation. We are persuaded that § 54-96a does not govern the involuntary payment of fines. On the present record, we agree with the defendant that his appeal is not moot. If he prevails in this appeal, he has a claim for monetary relief.⁸

II

We turn now to the merits of the defendant's claim that he was wrongfully convicted of having violated § 29-37i. The parties agree that the resolution of this claim depends upon the validity of the search warrant that authorized the police to search two residences, his own and that of his father, in connection with the charge that he had committed the crime of threatening under § 53a-62. We agree with the defendant that the trial court improperly denied his motion to suppress the evidence obtained through the use of the search warrant.⁹ The underlying facts are undisputed. The defendant and an adjoining landowner have long been at odds about the boundary line between their properties. Although the adjoining landowner had repeatedly initiated the defendant's arrest on issues raised by this dispute, the record does not indicate that the defendant has ever been convicted of any of those alleged crimes. Four months before the present incident, a police officer had advised the defendant that, if he believed that someone was trespassing on his property, he should not take the matter into his own hands, but instead should call the police to take care of the problem.

On August 30, 1999, the defendant observed that a locked gate on his property had been knocked down and that a logging skidder had been parked on property that he thought belonged to him. He called the police to report this alleged trespass. In response, Officer David Hebert of the Farmington police department came to the defendant's house. Hebert advised him to file a civil action to establish his property rights but indicated that he would take no further action until the defendant could produce authoritative evidence of ownership.¹⁰ The defendant then told Hebert that "the police weren't taking the necessary action to avoid a bloodbath." Before he left, Hebert warned the defendant that he would be arrested if he interfered with the work that was being done by the adjoining landowner. During this conversation, the defendant was not armed and did not refer to firearms in any way. Hebert was annoyed and offended by the defendant's "bloodbath" statement, but did not feel threatened thereby.

Upon returning to the police station, the officer informed his colleagues of what had transpired. This information was relayed to the abutting landowner. On September 4, 1999, the police obtained both an arrest warrant for the defendant and a search warrant for his residence and that of his father. Both warrants were executed on September 7, 1999.

Without informing the defendant of the arrest warrant, the police asked him to come to the police station to discuss the property dispute. He was then arrested and incarcerated. He was not told that the police were in the process of searching the family homes. Under arrest, the defendant had no opportunity to protest the execution of the search warrant.

Once the defendant had left his residence, a team of eight to ten police officers was dispatched to search the two residences. In addition to seizing the six firearms specifically identified in the search warrant, the officers saw and seized a large number of firearms, piles of ammunition and related paraphernalia. In the view of the police, several of the firearms were loaded. The officers knew that the defendant's firearms were registered and licensed to him because that information, contained in records at the police station, was the source of their identification of the weapons for which they would search.

At trial, the defendant properly challenged the validity of the search warrant by filing a pretrial motion to suppress the evidence so obtained for lack of probable cause to conduct the search. Without elaboration, the trial court denied the motion.¹¹ On appeal, the defendant again argues that the search warrant violated his rights under the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7, because the warrant was issued without probable cause to do so. "Probable 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; and (2) there is probable cause to believe that the items named will be found in the place to be searched." (Internal quotation marks omitted.) State v. Mordowanec, 259 Conn. 94, 110, 788 A.2d 48, cert. denied, ___ U.S. ___, 122 S. Ct. 2369, 153 L. Ed. 2d 189 (2002); State v. Martinez, 51 Conn. App. 59, 66, 719 A.2d 1213, cert. denied, 247 Conn. 952, 723 A.2d 324 (1998). The defendant maintains that the search warrant (1) failed to establish probable cause of criminal activity and (2) failed to describe the property to be searched with sufficient particularity.

"Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law.... The trial court's determination on [that] issue, therefore, is subject to plenary review on appeal." (Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 864, 776 A.2d 1091 (2001); State v. Arline, 74 Conn. App. 693, 699, 813 A.2d 153, cert. denied, 263 Conn. 907, 819 A.2d 841 (2003). The facts to be considered are those contained within the four corners of the affidavit presented to the magistrate. State v. Respass, 256 Conn. 164, 172, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001); State v. Martinez, supra, 51 Conn. App. 66; see also State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S....