2 Conn. Cir. Ct. 247 | Conn. App. Ct. | 1963
All of these cases were tried together, and for the convenience of the parties the appeals from the judgments rendered have been combined. Defendant Carr was convicted for (1) keeping a gaming house and (2) gaming, both offenses being in violation of § 53-273 of the General Statutes.
Ben Carr owned and operated a barbershop at 148 Dixwell Avenue in New Haven. The closing hours of the shop were 6 p.m. during the week and 7 p.m. on Saturday. On Friday, August 3,
The foregoing facts are not in dispute. The court took judicial notice of prior convictions of the defendant Carr for keeping a gaming house and gaming at that location and heard evidence of the reputation of the barbershop as a gaming house.
The assignment of errors in each appeal is specific in its claims of illegal search and unlawful arrest in violation of article first, 8 and 9, of the constitution of Connecticut and the fourth, fifth and fourteenth amendments to the constitution of the United States. Although each appeal is also predicated on the general assignment that the court erred in concluding on all the evidence that the defendants were guilty beyond a reasonable doubt, this assignment was not pursued separately in brief or argument, and we need not consider it apart from the errors specifically assigned. The finding of facts, summarized above, to which no exception has been taken, and the evidence which we have examined amply support the finding of guilt, except as this finding may be affected by the introduction of evidence obtained through a search deemed illegal under the pertinent provisions of the state and federal constitutions.
We cannot refrain from pointing out that all the assignments of error except that relating to the ultimate finding of guilt, which we have already considered, have been presented to us in plain disregard of our rules. They have been drawn as abstract propositions of law and are not directed to any ruling on evidence or other rulings made in the course of trial. See Cir. Ct. Rule 7.29.1 (4), (5).
It is claimed as to all defendants that the court erroneously admitted testimony by Buffalo e as to what he observed through the transom and heard outside the rear door of the barbershop. If this testimony was improperly admitted, then such other evidence as was introduced would have been insufficient to sustain the conviction of the defend
Specifically, the defendants claim that the presence of the officer in the alley and at the rear of the premises was unlawful and was solely for the purpose of obtaining information concerning the commission of crime; that, except for such invasion of the premises exterior to the barbershop, there could be no reasonable ground for the warrantless entry into and search of the barbershop and the arrest and search of the defendants. The defendants, without distinguishing the difference in the constitutional rights which each of them may assert individually, place their reliance on such cases as McDonald v. United States, 335 U.S. 451, and Brock v. United States, 223 F.2d 681 (5th Cir.). In the McDonald case, police officers had surreptitiously entered through a window of a rooming house into the landlady’s premises, and one of the officers, looking through a transom into a room of which McDonald was a tenant, saw the petitioners engaged in activity having to do with the numbers game. Numbers slips, money and adding machines were in plain view. The officers had neither an arrest nor a search warrant. They demanded entry, were admitted, arrested the petitioners and seized the materials described. Conviction was reversed on the ground that the search and seizure were unreasonable and violative of the
Neither of these cases is authority for the general proposition that evidence visually obtained by looking through a window, as in this case and under the circumstances here present, is inadmissible to prove that a crime was committed. In each of the cited cases, the evidence was held inadmissible because of an entry on and search of premises without a warrant when a warrant was obtainable, and the entry was for the purpose of making a search, the arrest being used as an excuse for the warrantless search. McDonald v. United States, supra, 454, 458; Brock v. United States, supra, 685; see also such cases as Trupiano v. United States, 334 U.S. 699, 703, 706, 708; United States v. Lefkowitz, 285 U.S. 452, 467; McKnight v. United States, 183 F.2d 977, 978 (D.C. Cir.); Accarino v. United States, 179 F.2d 456, 457 (D.C. Cir.). It is true that in the Brock case (p. 685) there is sweeping language that “standing on a man’s premises and looking in his bedroom window is a violation of his ‘right to be let alone’ as
As to defendants Barron and Daniels, no claim can be made that their right to privacy was invaded in violation of their rights under the fourth amendment to the federal constitution and article first, § 8, of the state constitution. At most, their position was that of guests of Carr and therefore they were not within the orbit of the constitutional provisions referred to, either as to the information obtained by looking through the transom, or as to the warrant-less entry on the premises, or as to the subsequent arrest and search. McDonald v. United States, 335 U.S. 451, 456, 461; Trupiano v. United States, 334 U.S. 699, 704. The testimony of the officers established a prima facie case which, in the absence of any refutation by these two defendants, was sufficient to sustain a conviction on the charge of gaming. The arrest of the defendants was not invalid because of the forced entry through the front door of the barbershop without a warrant. It was made as a consequence of a criminal act committed in the plain view of one of the arresting officers, and no warrant was necessary. General Statutes § 6-49; State v. DelVecchio, 149 Conn. 567, 574; State v. Davis, 24 Conn. Sup. 22, 31. No constitutional rights of defendants Barron and Daniels were infringed inasmuch as the forced entry was not on their premises; and defendant Carr, who was then outside of his barbershop and aware of what was taking place, instead of protesting the entry, ran in the opposite direction until apprehended.
All of the defendants claim that, in any event, the entry was illegal because the officers failed to make
On behalf of defendant Carr it is further claimed that (1) the evidence of the officer’s listening at the rear door and looking through the transom was obtained in violation of Carr’s right to privacy under the constitutional provisions referred to above and could not be used against him; and (2) his arrest was consequently illegal. His contention is predicated on the premise that the officer was unlawfully present on defendant Carr’s premises for the purpose of obtaining information on whether a crime was being committed and this constituted an unreasonable intrusion on his privacy under the rule in such cases as McDonald v. United States and Brock v. United States, supra. We cannot accept the assumed premise as true. Buffaloe was engaged in patrolling the neighborhood where Carr’s barbershop was located. It was his duty to investigate any suspicious circumstance which might come to his notice and be indicative of unlawful acts. The fact that the barbershop was illuminated at a late hour at night, long after the normal closing hour, was enough to alert the officer to the need for an investigation of the premises. It is common knowledge that police officers patrolling commercial districts customarily check the doors of business establishments and are on the lookout for unusual conditions which might constitute a threat to persons or property. Buffaloe’s presence at the rear of the barbershop was justifiable, and the information gained by him was not inadmissible as being an invasion of defendant Carr’s right to privacy. The fact that the arrest of Carr occurred approximately one hour after the officer first saw him through the transom did not make it unlawful. It was necessary for Buffaloe to await the arrival of other officers to assist him in apprehending all the defendants,
The remaining ground of appeal in Carr’s case relates to his conviction for the offense of keeping a gaming house. The state was required to prove that the premises where the dice game occurred were “a place resorted to for the purpose of gaming, or which . . . [was] reputed to be a gaming house or place frequented for the purposes of gaming.” § 53-273. Evidence of general reputation was offered through Buffaloe, who had lived in the neighborhood for ten years and knew of the premises known as 148 Dixwell Avenue. He was familiar with the reputation the shop had in the neighborhood. The court heard testimony concerning prior arrests of Carr for gaming and keeping a gaming house at that location and took judicial notice of the resulting convictions. There was sufficient evidence of the real character of the place for the court reasonably to conclude, in the absence of any evidence to the contrary, that Carr was guilty of keeping a gaming house. See State v. Flint, 63 Conn. 248, 250; State v. Anderson, 82 Conn. 111, 114; State v. Gaetano, 96 Conn. 306, 318.
There was no claim in the brief, nor was it pointed out in argument, that there was an infringement of the rights of the defendants under the fifth amendment; therefore we consider that assignment of error waived.
There is no error.
In this opinion Pruyn and Levine, Js., concurred.
"See. 53-273. gaming house; keepers. Any person who keeps a place resorted to for the purpose of gaming, or which is reputed to be a gaming house or place frequented for the purposes of gaming, or engages in playing at any game for any valuable thing or resides in or frequents such place for such purposes, shall be fined not more than one hundred dollars or imprisoned not more than six months or both.”