67 Conn. App. 436 | Conn. App. Ct. | 2001
Opinion
The defendant, John H. Anderson, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c.
The following facts and procedural history are relevant to the issues presented. The defendant resided in a trailer at site number fourteen in the Valley in the Pines Campground in Goshen.
Tillman also told the troopers that the defendant had been storing, sandblasting, repainting and disassembling farm equipment in the vicinity of his campsite. At that time, the troopers also were investigating a larceny of farm equipment. While observing the area, the troopers noticed farm equipment lying on or in the proximity of the defendant’s campsite. They contacted Stephen Kubish, a local farmer who earlier had reported the theft of farm equipment to the police, and asked him to come to the area to view the equipment. After viewing the equipment, Kubish identified some of it as the stolen property.
On the basis of their observations, Kubish’s identification and the attendant circumstances, the troopers
On August 5, 1998, Brunetto canvassed area gun shops, including Autumn Gun Works, Inc., which was the gun shop located nearest to the defendant’s residence. Brunetto’s investigation revealed that the owner of the gun shop, Christopher Marino, had purchased firearms from the defendant in the past. Those purchases, which occurred in June, 1996, and August, 1997, included several rifles, two handguns and a shotgun.
On the basis of the evidence obtained from the gun shop canvass, an arrest warrant was issued, and the defendant was arrested on September 16, 1998, and charged with possession of a pistol or revolver.
When reviewing a court’s findings and conclusions involving a motion to suppress evidence, we evaluate, in view of the whole record, whether the court’s findings and conclusions were clearly erroneous. State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001). “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Id.; State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).
Specifically, the defendant challenges the court’s denial of his motion on four grounds. He claims that (1) the search warrant application and subsequent warrant were neither presented to, nor issued by, a detached
Were we to assume, without deciding, that the warrant was invalid along with all of the evidence seized therefrom, we would conclude that the evidence obtained from the gun shop canvass is not inadmissible under the fruit of a poisonous tree doctrine
In the seminal case of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the United States Supreme Court set forth the basic rule that we adhere to today. The exclusionary rule requires that evidence obtained from prior illegal police activity must be suppressed if such evidence is found to be the fruit of that prior police illegality. Id. To be admissible, therefore, the challenged evidence must fit into an exception to the exclusionary rule. The inevitable discovery doctrine is such an exception, and we find it to be applicable in the present case. See Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1998); State v. Cobb, 251 Conn. 285, 337, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
In Cobb, our Supreme Court explained the inevitable discovery doctrine and its supporting public policy.
In Badgett, the court stated further that for evidence to be admissible, “the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Emphasis in original.) Id. In Cobb, however, our Supreme Court subsequently stated that such requirements for the application of the inevitable discovery doctrine may not be rigid. State v. Cobb, supra, 251 Conn. 338-39.
On the basis of Badgett and Cobb, this court must make two determinations. First, as a threshold matter, we must determine whether the lawful means that made discovery inevitable were possessed by the police and
We conclude that the lawful means, namely, the information given by the neighbors to the police, were possessed by the police and were being actively pursued prior to the issuance of the warrant. Credible evidence adduced at the hearing indicated that the police gained information concerning the defendant’s possession of firearms on July 1, 1998, seven days before the alleged constitutional violation, when the neighbors informed them that the defendant had been “cleaning guns” near his campsite.
That conclusion is further supported by Brunetto’s testimony. She testified that she would have canvassed local gun shops irrespective of her conversation with Kane, who was identified on the tractor receipt, because there was prior evidence, garnered from the initial visit to the trailer park, that a convicted felon possessed a firearm. Brunetto further testified that the reports that the defendant possibly possessed multiple firearms would have resulted in a canvass of area gun shops because the defendant was known to be a convicted felon.
Because of the close proximity in time between the acquisition of the initial information, which commenced the investigation, and the actual canvassing of local gun shops, we are persuaded that the evidence falls within the Badgett test as interpreted in Cobb. As stated in Cobb, “[circumstances justifying application of the inevitable discovery rule are most likely to be present if these investigative procedures were already in progress prior to the discovery via illegal means ... or where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later . . . .” (Citation omitted; internal quotation marks omitted.) Id., 339, quoting 5 W. LaFave, Search and Seizure (3d Ed. 1996) § 11.4 (a), pp. 249-50. The lawful means that made discovery inevitable, namely, the information gathered by the troopers on July 1,1998, was possessed by the police, and they were actively pursuing the matter prior to the occurrence of the alleged constitutional violation.
The troopers’ testimony demonstrated by a preponderance of the evidence that the challenged evidence ultimately would have been discovered by lawful means, specifically, the troopers’ canvass of the local gun shops. Any evidence obtained as a result of the troopers’ canvass of the local gun shops cannot be characterized as “fruit of the poisonous tree” because further investigation, untainted by any illegality, uncovered such evidence. The factual basis of the court’s findings was not clearly erroneous in light of the whole record, and its legal conclusions find support in the evidence and memorandum of decision, and are legally
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”
It is undisputed that the trailer was then the defendant’s residence.
Marino gave Brunetto documentary proof of those transactions.
See footnote 1.
Practice Book § 41-12 provides: “Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.”
Practice Book (2000) § 61-6 (a), now § 61-6 (2) (i), provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. . . .”
Our Supreme Court has explained that “the fruit of the poisonous tree doctrine . . . requires courts to exclude evidence that is the product or fruit of police conduct in violation of the [defendant’s constitutional rights].” (Internal quotation marks omitted.) State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986).
Because we reach this conclusion, we need not address the issues raised by the defendant regarding the validity of the search warrant. The defendant asserts that the state constitution affords more protection than the federal constitution does regarding search and seizure. Even assuming that to be true, it is clear that Connecticut, courts, along with “the vast majority of all courts, both state and federal,” recognize the inevitable discovery exception to the exclusionary rule as formulated by the United States Supreme Court. (Internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). As such, an increased level of protection that the state constitution might afford, in comparison to the federal constitution, is of no consequence once the challenged evidence satisfies the requirements of an exception to the exclusionary rule, as recognized by our Supreme Court. State v. Cobb, 251 Conn. 285, 338-39, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Colvin, supra, 241 Conn. 655-56; State v. Vivo, 241 Conn. 665, 672-73, 697 A.2d 1130 (1997); State v. Graham, 200 Conn. 9, 20, 509 A.2d 493 (1986); see Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1998); Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).
Moreover, without assuming the defendant’s state constitutional claim to be correct, we still decline to address it because the claim is inadequately briefed. The defendant’s claim is void of any real analysis and is almost entirely based on conclusory statements. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by
The inevitable discovery exception to the exclusionary rule is similar to the independent source exception to that rule, and, therefore, both exceptions are usually explained together. We follow that trend. See Murray v. United States, supra, 487 U.S. 539; State v. Cobb, supra, 251 Conn. 337-39.
Despite the defendant’s arguments to the contrary, “it is well established that the evaluation of a witness’ testimony and credibility is wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 564-65, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001). Therefore, we do not disturb the court’s factual findings at the suppression hearing regarding the troopers’ testimony.