5 Conn. Cir. Ct. 637 | Conn. App. Ct. | 1969
The defendant, having been convicted of a violation of § 53-298 of the General Statutes, has appealed from the judgment. Before the trial the defendant made certain motions, including motions to dismiss the complaint and suppress certain evidence on the grounds that the search warrant in possession of the arresting officer was illegally
Under the assignment of error relating to the court’s ruling on certain evidence, the defendant again raised the question of the legality of the search warrant, claiming that the supporting affidavits lacked adequate probable cause. See State v. Mariano, 152 Conn. 85, 91, cert. denied, 380 U.S. 943. While such a claim might have been assigned as error and briefed under a separate heading, we review it at this posture of the opinion. At the hearing, the defendant was unsuccessful in moving to dismiss the information on the ground that it was predicated on an improper issuance of a search warrant. The defendant had the burden of proof on the motion. Ibid.
The essential elements necessary to establish probable cause in the issuance of a search warrant have been thoroughly reviewed by our Supreme Court. See such cases as State v. Allen, 155 Conn. 385, 391; State v. DeNegris, 153 Conn. 5, 9. If the standards set forth in such cases are here applied, we are satisfied that the search warrant was legally issued, since the affidavits sufficiently asserted a reasonable belief in the existence of probable cause and the court’s conclusion in this respect was justified. The court further concluded that the search of the defendant’s person was in accordance with § 54-33b of the General Statutes and that the property seized was within the purview of the property described in the search warrant, and, furthermore, that no warrant was actually required for the search and seizure of this property nor the subsequent arrest of the defendant. Following the hearing, motions to quash, dismiss, discharge the defendant, return the property and suppress the evidence were denied.
In the trial that followed the hearing, the defendant again made the identical claims on the same grounds. The court’s rulings were adverse to the defendant. “Where a matter has already been put in issue, heard and ruled on pursuant to a motion to suppress, the court on the subsequent trial, although not conclusively bound by the prior ruling, may, if it is of the opinion that the issue was correctly decided, properly treat it as the law of the case, in
In considering the constitutionality of § 54-33b, it should be recognized that “ [c] ourts in passing upon the validity of a legislative Act do not feel justified in declaring a law void, unless there is a ‘clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication.’ . . . ‘It is our duty to approach the question with great caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the Act unless its invalidity is, in our judgment, beyond a reasonable doubt.’ ” State v. Lay, 86 Conn. 141, 145. Nor can we impute to the General Assembly an intent to pass an invalid act or antagonistic legislation. Wilson v. West Haven, 142 Conn. 646, 656. Moreover, “[a]n intent on the part of the legislature to enact a law of such doubtful constitutionality is not readily to be inferred.” Antman v. Connecticut Light & Power Co., 117 Conn. 230, 237. Furthermore, this court should declare a statutory provision unconstitutional only upon the clearest ground; particularly is this so where the statute turns on what is “reasonable.”
Section 54-33b was enacted at the 1963 session of the General Assembly following the repeal of § 54-34, from which it was derived. These statutes relate to search warrants in situations involving gambling and lottery implements. The former statute provided that the officer serving the warrant may, if he has reason to believe that gambling paraphernalia is concealed in the garments of any person named in the warrant, “search the garments of such person for the purpose of seizing the same.” The present statute, however, extends the search to the
The right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures is a fundamental right guaranteed by both the federal and state constitutions. It is grounded on the tradition of English jurisprudence. The fourth amendment to the federal constitution provides as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Our state constitution in article first, § 7, contains a similar provision.
“The immunity provided by the constitutional guaranties is not from ail searches and seizures, but from unreasonable searches and seizures only.” 47 Am. Jur. 531, Searches and Seizures, § 52. Only unreasonable searches and seizures come within the interdict of the constitution. Mapp v. Ohio, 367 U.S. 643; Harris v. United States, 331 U.S. 145; State
The search of one’s garments under § 54-33b is severely restrictive, and certain conditions precedent must exist before it can be made. First, there must be a valid search warrant which provides for a lawful entry on the property, the indispensable predicate of a reasonable search. State v. Elliott, 153 Conn. 147, 152. Under the provisions of the statute, a search warrant was required although the premises were a store open to the public. Second, the property directed to be seized must be adequately described in the warrant, and such property is limited to gambling material. Third, the person searched must be present in or upon the place set forth in the warrant. Fourth, such search can be made only if the officer has “reason to believe” that
Probable cause exists under § 54-33b when the “circumstances observed by the officer preceding the arrest, viewed in the light of common knowledge and his own training and experience, gave him probable cause to believe that a crime was being, or had just been, committed.” State v. DelVecchio, 149 Conn. 567, 575, and cases cited; State v. Reynolds, 101 Conn. 224, 229; 5 Am. Jur. 2d, Arrest, § 44. It “ implies an offender and an act of offense which is not in the past.’ ” State v. DelVecchio, supra. Whether such an offense is a misdemeanor or a felony in this situation is not controlling. See State v. Elliott, supra, 151-52; State v. DelVecchio, supra, 574; State v. Carroll, 131 Conn. 224, 228; Price v. Tehan, 84 Conn. 164, 167. However, an actual search or an arrest based solely upon probable cause is not justified merely upon the information of others; it must be predicated upon facts within the knowledge of the officer making the search or the arrest. 5 Am. Jur. 2d, Arrest, § 32. We construe the statute to provide for an “on sight” or “on view” search based on “probable cause.” The statute in effect codifies the existing law after a lawful entry has been made and the additional conditions of the statute, already considered, have come
The defendant relies on such eases as United States v. Di Re, 332 U.S. 581, United States v. Festa, 192 F. Sup. 160, Thurman v. State, 116 Fla. 426, and Polk v. State, 167 Miss. 506, to support his contention that § 54-33b is unconstitutional and therefore any search as provided therein transgresses constitutional guarantees. These cases are distinguishable from the instant case, turning as it does on the construction of a statute. In Di Re, the Supreme Court of the United States held that officers lacking a warrant were not justified in searching an occupant of an automobile, notwithstanding they had reasonable cause to believe that there was contraband in the automobile in the form of counterfeit gasoline ration coupons, for there was no probable cause to believe that the occupant was involved in any conspiracy which the officers believed had been or was being committed. In Festa the court, adhering to the rule in Di Re, held that a search warrant for a particular building does not authorize a general search of all the persons found in it. In Thurman and in Polk it was held that gambling statutes authorizing forcible entry, without a warrant, into a house or other place, upon a belief that gambling was being carried on therein, were unconstitutional.
The defendant further contends that the search of his garments was illegal because it preceded rather than followed his arrest. “ ‘[I]f the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested . . . there is nothing unreasonable in his conduct if he makes
Finally, the defendant claims error in the admission during the trial of two slips, consisting of Desolvo paper, on which purported policy numbers were listed. The defendant, however, has failed to comply with § 989 (4) of the Practice Book. When an error is claimed in the admission or rejection of evidence, the appellant is required to set forth in an exhibit annexed to his assignment of errors “the question, the objection, the answer, if any, and the exception.” State v. Church, 4 Conn. Cir. Ct. 220, 225; see Practice Book, Form 819(B) (4). This the defendant failed to do, and thus this assignment of error is not properly before us.
There is no error.
In this opinion Wise and Macdonald, Js., concurred.
The defendant’s assignments of error as set forth in Ms brief are as follows: I. The court erred in failing to correct the special finding and finding in the manner set forth in appellant’s motion to correct special finding and finding. II. The court erred in admitting into evidence the fruits of the illegal search and arrest of appellant-III. Section 54-33b of the General Statutes violates the fourth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut because it authorizes an unreasonable search and seizure.