6 Conn. Cir. Ct. 564 | Conn. App. Ct. | 1971
Lead Opinion
The information charged the defendant, in the first count, with the crime of possession of a controlled drug other than a narcotic drug, in violation of § 19-481 (b) of the General Statutes, and, in the second count, with transportation of a controlled drug other than a narcotic drug with intent to sell or dispense it in violation of § 19-480 (b). The defendant was found guilty on each count and has appealed. The case was submitted on briefs as stipulated by the parties. The defendant has assigned error in the denial of his motion to suppress, in rulings on evidence, and in the court’s conclusion that upon all the evidence the defendant was guilty beyond a reasonable doubt.
A preliminary hearing was conducted (Membrino, J.) on the motion to suppress, and the court’s finding, not under attack, recites the following facts: On February 18,1970, James Fitzgerald was a ticket agent for American Airlines at Bradley Field. As such, he had authority to open and search any unclaimed bag to determine the ownership thereof. On the morning of February 18, a brown traveling bag with a claim ticket attached arrived at Bradley
The defendant’s motion to suppress was denied, the court having concluded as follows: Fitzgerald was not acting under the authority of the police when he made a search of the bag, and his search was not proscribed by either the federal or the state constitution. The search by Krupa was made without a warrant and disclosed nothing in addition to that found by Fitzgerald. At all times, American Airlines was obligated to deliver the bag to the claimant thereof on presentation of the proper claim check. The search made by Fuller was reasonable
We first consider the defendant’s contention that the search and the seizure of the contents of the bag were unconstitutional. There appears to have been three searches in addition to that of Fitzgerald; the defendant, however, has depended on Krupa’s search as being the critical search. As for the initial search as such, the defendant in his supplemental brief has conceded that it was not proscribed by the United States constitution.
In his motion to suppress, the defendant sought to suppress “any and all evidence seized as a result of a search of a certain traveling bag.” He concedes that Fitzgerald’s actions did not fall within the penumbra of the fourth amendment. They were not of an exploratory nature made for the purpose of uncovering evidence. Fitzgerald believed, from his observation of the contents of the parcel which he saw on opening the bag and from the peculiar odor emanating from the parcel, that it contained marihuana. Marihuana is a controlled drug as defined by § 19-451 of the General Statutes, and its possession constitutes a crime under § 19-481 (b). Krupa arrived on request of the airline. The finding merely recites that Krupa examined the contents of the bag. It does not appear that a search, as the term is commonly understood, took place. The word “examine” has been defined “to look at or into critically or methodically in order to find out the facts.” Webster, New World Dictionary (College Ed.). There is no finding that Krupa seized any object in the bag. A motion to suppress contemplates both a search and a seizure, since the fourth amendment to the federal constitution provides for the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
The defendant has assigned one remaining error relating to the preliminary hearing on the motion to suppress. He claims that the finding does not support the court’s conclusion that there was danger “of imminent destruction, removal or concealment” of the bag and its contents if they were delivered to a claimant before a search warrant could be obtained. We are not called on to determine whether American Airlines could have properly refused delivery of the bag to a claimant prior to the obtaining by the police of a search and seizure warrant, for that situation did not arise. The bag was seized while it was in the possession of the defendant, and the police were then armed with a search warrant. It is significant that the search and seizure warrant is not under attack.
The defendant has relied heavily on two cases, People v. McGrew, 1 Cal. 3d 404, and Abt v. Superior Court, 1 Cal. 3d 418. In McGrew, an airline freight agent became suspicious of a locked foot locker delivered to him for shipment and, believing it contained marihuana, he pried the locker open and discovered marihuana. The police were notified and appeared, opened the then closed locker and removed
During the course of the trial, the defendant took two exceptions to rulings on evidence. The first
At the close of Krupa’s testimony the defendant objected to it, claiming that it was the product of an illegal search and seizure. There was no motion to strike the testimony. Since, however, we have found that Krupa made no seizure, we merely note that no error was committed by the court in its ruling.
The defendant claims that his guilt beyond a reasonable doubt on each count was not established by the evidence. A search and seizure warrant was obtained during the late afternoon or early evening of February 18. Later, the defendant appeared at the baggage window with a claim ticket, and the bag was delivered to him. He was then approached by the officers, who informed him that they had a search warrant. The bag, admitted by the defendant to be his, was then searched, the contraband found and the defendant arrested. The toxicological report indicated that the parcel contained a brick of marihuana weighing one pound and that the plastic bag contained seventy-two LSD pills. The defendant testified that he did not know how the material got into his bag. It thus became a question of credibility, the determination of which was a function of the
The defendant further claims that the evidence does not establish guilt beyond a reasonable doubt as it relates to the second count. Section 19-480 (b) provides that “[a]ny person who manufactures, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, . . . offers, gives or administers to another person any controlled drug other than a narcotic drug . . . , except as authorized in this chapter,” shall be punished. There was no direct evidence that any of the prohibitions set forth in the statute had been violated, nor was there any evidence of the value of the drugs seized or of the significance of the amount seized in relation to the prohibitions. To warrant a conviction, there must be no reasonable doubt as to any essential element of the crime charged. State v. Smith, 138 Conn. 196, 201. “The court was entitled to draw all fair and reasonable inferences from the facts established by the evidence, but the conclusions based on them must not be the result of speculation and conjecture.” State v. DeCoster, 147 Conn. 502, 504. “Our law is settled that the proof of guilt must exclude, not every possible, but every reasonable supposition of the innocence of the accused.” Id., 505. In the present case, the evidence, as it relates to the second count, does not exclude every reasonable supposition of the innocence of the defendant. It would be reasonable to conclude that the defendant possessed the drugs for his own consumption. In concluding otherwise, the court invaded the realm of speculation and conjecture.
There is no error as to the first count; there is error as to the second count, the judgment is set
In this opinion Kiwmoítth, J., concurred.
Concurrence Opinion
(concurring). The motion sought the suppression of “any and all evidence seized as a result of a search of a certain traveling bag allegedly belonging to the defendant.” Greneral Statutes § 54-33f expressly provides for a motion to suppress, which “is analogous to the federal practice under Rule 41 (e) of the Federal Rules of Criminal Procedure.” State v. Mariano, 152 Conn. 85, 90, cert. denied, 380 U.S. 943. Under our statute, a person aggrieved by an unlawful search and seizure may move for restoration of the property and suppression of its use as evidence. In the present case, a schedule of the property or articles sought to be suppressed was not annexed to the motion.
In O’Neal v. United States, 222 F.2d 411, 412, the accused was convicted of a violation of a narcotics statute. Prior to trial, she filed a written motion “that the evidence taken from her at the time of her arrest be suppressed at the trial herein, as the arrest was illegal, and the subsequent search of her premises was in violation of her Constitutional rights.” The property or articles which the accused desired to have suppressed for use as evidence were not enumerated or described in the motion, nor were they specifically identified at the evidential hearing on the motion. The court held: “The motion was therefore insufficient and need not have been considered.” In United States v. Carney, 188 F. Sup. 86, the accused moved to suppress any and all evidence obtained through wiretapping. The court held (p. 88): “It is well settled that a party moving for suppression of evidence must state definitely what particular . . . [articles or items] he desires sup
Moreover, it cannot be said that the airline employee initiated the search solely to serve the purposes of the state. Cf. Corngold v. United States, 367 F.2d 1, 5. Quite to the contrary, the initial search of the traveling bag by the airline employee “was an independent investigation by the carrier for its own purposes.” Gold v. United States, 378 F.2d 588, 591. This investigation was nothing more than a carrier inspection in the furtherance of the private interests of the airline. The drugs were “clearly discovered as a result of a private search which was, hence, not unlawful. . . . The subsequent acts of the police did not constitute a search.” Clayton v. United States, 413 F.2d 297, 298.
For the foregoing reasons, therefore, I am of the opinion that the motion to suppress was properly denied.