5 Conn. Cir. Ct. 44 | Conn. App. Ct. | 1967
The issues involved in these cases are identical. They were heard and argued together and may be disposed of in a single opinion. Both defendants are charged with violations of § 53-216 (sodomy) and § 53-217 (indecent assault).
The defendants’ motions to suppress arise under § 54-33f
But even if § 54-33f can have no application to the cases at bar, the state has acquiesced in its use; see State v. Mariano, supra; and since the hearing on the motions was properly held, the court must decide (1) the issue of the applicability of § 54-33f, and (2) the substantive issues raised during the hearing and in the briefs.
Turning for a moment to the applicability of § 54-33f, there are three alternatives: (1) The legislature enacted a definition of property (§ 54-33a [a]) which was to apply to § 54-33f. Here, of course, the suppression must refer to the words “tangible things.” In the context of §§ 54-33a to 54-33g, and according to general notions of jurisprudence, testimony or information is not a “tangible thing.” (2) Section 54-33f is for all practical purposes a verbatim adoption of Rule 41 (e) of the Federal Rules of Criminal Procedure. Hence, it could be argued that the federal notions of suppressible material should be imported into § 54-33f in order to arrive at a proper interpretation. In 1961, in Silverman v. United States, 365 U.S. 505, the court for the first time reversed a conviction obtained with the assistance of electronic eavesdropping. The case concerned eavesdropping by police on conversations
The defendants moved to suppress testimony by police officers concerning information they gained in what is alleged to have been an illegal search and seizure. The motion arises under § 54-33f (1), which provides for suppression on the ground that “[t]he property was seized without a warrant.” The state concedes there was no warrant in these cases. But it is settled law that “[a] reasonable search which is incident to a lawful arrest is not unlawful even though it is made without a warrant.” State v. Elliott, 153 Conn. 147, 152; State v. Collins, 150 Conn. 488, 492; State v. Towry, 26 Conn. Sup. 35. Thus, we are impelled to ask: Was this a search? And was this a lawful arrest?
To find a search, there must be an interference with or an invasion of person or property. In Silverman v. United States, supra, 511, the court found that the police had encroached upon a constitutionally protected area when they gained evidence by overhearing the defendant’s conversations “by usurping part of the petitioners’ house or office.” In a California case similar to the cases at bar, People v. Alvarez, 236 Cal. App. 2d 106, police officers were told by an informer where to find stolen
In the cases at bar, we find no prying or usurpation. Also, the present cases are distinguishable from the cases cited in defendants’ brief. In McDonald v. United States, 335 U.S. 451, decided in 1948, police officers gained access to a rooming house, where they believed an illegal lottery was being operated, by unlawfully climbing into the landlady’s quarters, and they observed defendant’s conduct by climbing on a chair and peeping through the transom of McDonald’s room. Clearly, therefore, where officers are unlawfully on the premises within the curtilage, anything they see, even if in plain view, may not be seized. Nor may the officers testify as to what they have seen. Williams v. United States, 263 F.2d 487; McGinnis v. United States, 227 F.2d 598. In People v. Regalado, 224 Cal. App. 2d 586, the officer used an uncapped overhead pipe to view the defendant’s conduct in a toilet; in Bielicki v. Superior Court, 57 Cal. 2d 602, the officers drilled a hole in the door of the defendant’s cell; in Whitley v. United States, 237 F.2d 787, the court found the arrest was not legal; and in Smayda v. United States, 352 F.2d 251, a hole was cut in the roof of a toilet house to view the defendant’s behavior. Here,
The defendants argue that the officers trespassed and invaded their privacy when they stood outside the window. In State v. Plummer, 5 Conn. Cir. Ct. 35, the Appellate Division of this court relied on Roberts v. Rosenblatt, 146 Conn. 110, and United States v. St. Clair, 240 F. Sup. 338, to find that officers on a fire escape outside the defendant’s window were licensees and did not invade a constitutionally protected area. We think the same reasoning is also applicable here. The area outside the window was in the nature of a common corridor, public hallway, landing or stairwell. See United States v. St. Clair, supra, 340.
This court reaches the conclusion that the officers’ actions did not constitute a search; and even if it was a search, it would have been a search incident to a lawful arrest.
It is true, of course, that if the officers’ action was a search it was made immediately prior to the arrest. But in State v. Elliott, 153 Conn. 147, 153, the Supreme Court adhered to the rule in State v. Reynolds, 101 Conn. 224, 229: “[I]f the general rule had required the arrest before the search we should think it far too technical an application of the rule to hold that this search was unlawful because it preceded the arrest by an appreciable moment of time.” Thus, the rule in this state seems to he that the search incident to a lawful arrest may precede the arrest itself. State v. Elliott, supra. The Supreme Court of the United States, in Ker v. California, 374 U.S. 23, made it clear that the states may formulate their own rules of practice under the fourth amendment; the rule in the Elliott case is within the scope of that permission.
The defendants also insist that they are entitled to know the identity of the informer in order to enable them to establish that there was no probable cause for the search. On the one hand, we have concluded that the officers’ conduct did not constitute a search, and, on the other hand, assuming arguendo that there was a search, we have found that it was incident to a lawful arrest which was predicated on speedy information under § 6-49, which in turn does not establish a probable cause criterion.
Moreover, this court is bound by the decision in State v. Plummer, supra, where the Appellate Division concluded that the weight of authority is that there is no requirement to disclose the identity of the informer. See Rugendorf v. United States, 376 U.S. 528; Jones v. United States, 362 U.S. 257. Also, the Appellate Division ruled that “[w]here disclosure has been granted, it has been where probable cause has been predicated upon information obtained from the informant.” State v. Plummer,
For the reasons stated herein, the defendants’ motions to suppress the evidence must be, and the same are, hereby denied.
“Sec. 54-33f. motion for return of property. A person aggrieved by search and seizure may move . . . for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. ... TE the motion is granted, the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. . . .”