Petition — Runkles v. Connecticut

FILED

} JUL 8 1978

“8-16

Hu Che MICHAEL RODAK, JR., CLERK

~~ Supreme Court, U.S, ~~,

‘

Supreme Court Of The United States

OCTOBER TERM, 1978

0

JAMES E. RUNKLES, JR., PETITIONER

vs.

STATE OF CONNECTICUT, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF CONNECTICUT

JOHN P. FEBBRORIELLO, ESQ.

Febbroriello & Herbst

355 Prospect Street

Torrington, Connecticut 06790

(203) 482-4451

JOSEPH F. KEEFE, ESQ.

Smith, Smith, Mettling & Keefe

179 Water Street

Torrington, Connecticut 06790

(203) 482-7651

Attorneys for Petitioner,

James E. Runkles, Jr.

TABLE OF CONTENTS

Table of Authorities.............

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Jurisdiction...... Ce ig wc den

Questions Presented for Review....

United States Constitutional

Amendments and Connecticut

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Reasons for Granting Writ

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TABLE OF AUTHORITIES

Page

Aguilar v. Texas, 378 U.S.

2d 723, 84

Ss. Ct. 1509 (1964) SEE Atay eee Souk 19

Cardwell v. Lewis, 417 U.S.

d 325, 94

Ss. Ct. 2464 (1974) NSS ee 15

Carroll v. United States, 267

U.S. 132, 69 L.Ed. 543, 45

a 280 fo Ary ee 15

Chapman v. State of California,

705, 87 S. Ct. 824 (1967)....... 3,19

Chimel v. Caiifornia, 395 U.S.

L.Ed. 2d 685, 89

s. Ct. DR UES cs cc ce cased 12.

Coolidge v. New H sd. bd

564, 91S. Ct. 2022 (1971). ee Pet Fe

Draper v. United States, 358

7.6. a0; 2 bee. 26 S27,

Oe es le OO GROOE Pc cide ec ete cs 16

Fahy v. State of Connecticut,

NS nit en 19

Katz v. United States, 389

U.S. 347, I9 L.Ed. 2d 576,

2 SS Sa a: >) a 14

South Dakota v. Opperman. 428,

U.S. 364, 49 L.Ed. 1000,

ee ee PED ec wees 15

ii

TABLE OF AUTHORITIES (continued)

Spinelli v. United States,

P94 U.S —B10- 21 L.Ed. 2d

637, 89 S. Ct. 584 2: Sy 16

United States v. Chadwick,

- Ue. = . B2 tnee 2a

Pa OE: a es Mee ee oes co coco 3,10

Vale v. Louisiana, 399

iii

Ew

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO. 77-6857

JAMES E. RUNKLES, JR. ) PETITION FOR

Petitioner )

) WRIT OF CERTIORARI

)

vs. ) TO THE SUP’ ME COURT

)

) OF THE STATE OF CONNECTICUT

STATE OF CONNECTICUT, )

Respondent ) JUNE 5, 1978

TO THE HONORABLE WARREN E. BURGER, CHIEF

JUSTICE OF THE UNITED STATES, AND TO THE

HONORABLE ASSOCIATE JUSTICES OF THE

UNITED STATES SUPREME COURT:

NOW COMES JAMES E. RUNKLES, JR., by

his Attorneys John P. Febbroriello, Esq.,

and Joseph F. Keefe, Esq., the latter

being a member of the Bar of the United

States Supreme Court, and petitions this

Honorable Court for a Writ of Certiorari

directed to the Supreme Court of the State

of Connecticut, to review that certain

published decision, State v. Runkles, 39

Conn. L. J. No. 37, March 14, I978, deny-

ing an appeal from the judgment of the

trial court and from the decision of the

trial court denying a motion to oo

evidence. Petitioner, James E. Runkles,

Jr., prays that a Writ of Certiorari issue

to review the judgment of the Connecticut

Supreme Court entered on March 14, 1978,

rehearing denied on April 18, 1978.

Pursuant to Rule 23, Rules of the

Supreme Court of the United States,

Petitioner submits the following:

OPINION BELOW

The official and unofficial report

and citation of the ju nt herein sought

review is State v. Runkles, 39 Conn. L. J.

No. 37, page | (March 14, 1978), A.2d

(unpublished). A petition For re-

hearing was filed on April 7, 1978 and the

rehearing was denied April 18, 1978.

This opinion was rendered by the

Supreme Court of the State of Connecticut.

A copy of this opinion is appended as

APPENDIX "A".

This opinion was preceded by a deci-

sion of a judge of the Connecticut

Superior Court, who, after trial, found

the defendant guilty of the crimes of

possession of marijuana with intent to

sell and of theme a weapon in a motor

vehicle, which opinion is unreported, in

either the official or unofficial reports,

and which opinion was not a written

memorandum of decision.

JURISDICTION

The grounds upon which the jurisdic-

tion of this. Honorable Court is invoked

are:

(i) the date that the judgment

which is sought to be reviewed was

entered on March 14, 1978; ,

(ii) the petition for rehearing was

made on April 7, 1978 and denied on April

18, 1978 by the Connecticut Supreme Court

2

(Appendix "B"), and all state remedies

have been exhausted;

(iii), the statutory provision

conferring jurisdiction on this Honor-

able Court is 28 U.S.C. §1257(3) which

provides:

Final judgment or decrees

rendered by the highest court

of a State in which a decision

could be had, may be reviewed

by the Supreme Court as follows:

. . « By a writ of certiorari,

where the validity of a treaty

or statute of the United States

is drawn in question or where

the validity of a State statute

is drawn in question on the

ground of its being repugnant

to the Constitution, treaties

or, statutes of, or commission

held or authority exercised

under, the United States.

Jurisdiction of this Honorable Court

is further invoked because the Connecti-

cut Supreme Court has decided several

federal questions in a way not in

accordance with applicable decisions of

this Honorable Court in the areas of

search and seizure, United States v.

Chadwick, - U.S.-, 5 Ed, :

Coolidge v. New Hampshire, 403 U.S. 443,

and the Harmless Error Doctrine, Chapman

v. State of California, 386 U.S. 18.

QUESTIONS PRESENTED FOR REVIEW

Is a warrantless search of the con-

tents of personal luggage constitutional-

ly permissible when the search is con-

ducted without consent and is not pursuant

3

to any recognized exception to the

warrant requirement?

Is a warrantless search of the con-

tents of a fully-enclosed, windowless

and locked constitutionally permissible

when police had ample opportunity to ob-

tain a warrant prior to the time of the

seizure and search?

Is error "harmless" within the

mean of Chapman v. State of Califor-

nia and Fahy v. State o e penect

when it results in be F connect cu the

physical evidence used as the basis for

a defendant's conviction?

UNITED STATES CONSTITUTIONAL AMENDMENTS

AND CONNECTICUT STATUTES INVOLVED

FOURTH AMENDMENT

"The right of the people to be

secure their persons, houses,

papers, and effects, against un-

reasonable 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."

FOURTEENTH AMENDMENT

"Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the

United States and of the State

wherein they reside. No State

shall make or enforce any law

4

which shall abridge the privileges

or immunities of citizens of the

United States; nor shall any State

deprive any pe-son of life, liber-

ty, or property, without due

process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws."

STATEMENT OF FACTS

In February and March of 1974,

Joseph Mancini, a Sergeant in the Water-

bury, Connecticut, Police Department

and the Director of the Naugatuck Valley

Regional Crime Squad, personally met

with an informer known to him to be

reliable (Finding 9). The informer gave

Sergeant Mancini the following informa-

tion:

l. That a shipment of 1,000 to

1,500 pounds of marijuana was going to

be transported into Connecticut on April

22, 1974;

2. That the shipment would originate

in El Paso, Texes and would enter Connec-

ticut via Massachusetts, down U.S. Route 7;

3. That the marijuana would be

transported in a U-Haul trailer;

4. That one Robert Piccolo of Water-

bury, Connecticut, known to Sergeant

Mancini, would be involved in the ship-

ment. (Findings 7, 8, 9, 10, ll, 12).

On April 22, 1974 between 12:00 noon

and 1:00 p.m. the informer called Sergeant

Mancini and reiterated the information

that had been previously conveyed, with

5

the additional information that Robert

Piccolo's involvement would be either

leading or driving the U-Haul trailer

or a Mercury. The information was

once again confirmed in a telephone call

by the informant to Sergeant Mancini

between 5:00 p.m. and 6:00 p.m. the same

day. (Findings 14, 15, 16, 17).

Based on the information obtained

from the informer, and a conversation

between Sergeant Mancini and one Thomas

Carney, a Sergeant in the Connecticut

State Police and a field supervisor for

the State Police Narcotics Squad, Western

Division, Sergeant Carney sent out a

teletype message to Connecticut Police

Barracks. (Findings18, 19, 21, 27, 28).

The conversation between Sergeant Mancini

and Sergeant Carney took place between

4:00 p.m. and 4:30 p.m. on April 22, 1974.

The teletype contained the informant's

information, including a physical eb

tion of Robert Piccolo. (Findings 22, 18).

Between 7:30 p.m. and 8:0 p.m. on

aor 22, 1974, one James M. McGarry, the

ief of Police of the Town of Sheffield,

Massachusetts, who had previously received

a copy of the teletype message, began

following a Mercury Marquis which was

hauling a U-Haul Trailer, with Texas regis-

tration, and which was proceeding south

on U.S. Route 7. (Findings30, 33, 34, 36).

Chief McGa immediately contacted the

Connecticut State Police by radio via the

Great Barrington Police, and maintained

this contact, continually relaying his

location. (Findings 37, 39). This

resultei in the appearance of two Connec-

ticut Police cars, containing a Connecti-

cut State Police Sergeant Janco and two

6

troopers, which also followed the vehi-

cles. (Findings 41, 48, 61).

The Mercury and a black foreign car

subsequently pulled into a gas station

at the intersection of Routes 7 and 63

(Finding 42). It was observed that the

driver of the foreign car matched the

description of Robert Piccolo. (Finding

45). The foreign car left the gas sta-

tion and was fol lowed by one of the

Connecticut Police cars containing one

trooper. (Finding 61).

A trooper approached the occupant

of the Mercury, who was the defendant,

James E. Runkles, Jr. (Findings 60, 62).

The defendant was detained at the scene

as a result of the teletype message. A

briefcase was observed on the floor of

the back seat. The defendant was sub-

pi gr asked to get out of the car,

and did so. (Finding 65). An officer

remained with him, while one trooper

examined the locked, fully-enclosed and

windowless trailer, whose doors fitted

somewhat loosely; throvgh a crack he

observed bags of plant material and

detected an herbal odor. (Findings 67,

69, 70, 71). The lock was subsequently

broken by the trooper, under orders from

Sergeant Janco. Twenty three bags of

plant material were seen. nee ye 72).

The defendant was then arrested an

placed in custody. (Finding 73).

Approximately 15 to 20 minutes after

the arrest of the defendant, the Connecti-

cut Police personnel on the scene turned

their attention to the interior of the

Mercury. It was observed that the brief-

case was on the front seat. (Finding 75).

Sergeant Janco removed the briefcase from

7

the vehicle, placed it on the ground and

opened it. A small NVR.22 caliber

revolver was found in the briefcase and

both were seized. (Findings 87, 88).

On a trial to the court in the

Superior Court of Connecticut, the defen-

dant was found guilty of possession of

marijuana with intent to sell (Conn. Gen.

Stat. §19-480) and of having a weapon in

a motor vehicle (Conn. Gen. Stat. §29-38).

The defendant made timely oe

to the submission into evidence of the

fruits of the search of the trailer and

the briefcase, both in a separate hearing.

on a motion to suppress, entered prior to

the trial and on renewed motions to sup-

press at the trial. All of the motions

were denied and proper exception taken.

The defendant further attempted to question

State's witnesses regarding the informant,

and specifically whether the informant was

a police officer or in the employ of a

police unit. The State objected, and the

objection was sustained over argument by

the defendant as to the relevancy of the

information sought. Proper exception was

taken. All of these questions were raised

by the defendant in his appeal to the

Connecticut Supreme Court.

REASONS FOR GRANTING WRIT OF CERTIORARI

The constitutional issues herein

asserted were presented to the Connecticut

Superior Court and the Connecticut Supreme

Court. They involve the defendant's

rights guaranteed him under the Due

Process Clause of the Fourteenth Amendment,

his right to the suppression of evidence

under the Fourth Amendment, and the appli-

cation of the Harmless Error Rule to the

8

testimony sought | the defendant and

bearing upon the illegally seized evi-

dence that was introduced at his trial,

which resulted in the defendant's con-

viction.

The defendant has exhausted his

state remedies, and his only opportunity

to have these matters reviewed is by

this Court on direct appeal.

It is of special importance that

this Honorable Court agree to review

the issues raised by the defendant.

Not only does it appear that the Connec-

ticut Superior Court and the Connecticut

Supreme Court have seriously deprived

the defendant of his right under the

Constitution as set forth in the deci-

sions of this Court regarding the Harm-

less Error Doctrine and the warrantless

search of luggage in which the defendant

retained an expectation of privacy; it

also appears that both the Connecticut

Superior Court and the Connecticut Supreme

Court have interpreted the so-called

"automobile exception" to the warrant

requirement much more broadly than is

either warranted under the decisions of

this Honorable Court or advisable in a

democratic society.

ARGUMENT

I.

IS A WARRANTLESS SEARCH OF THE CONTENTS

OF PERSONAL LUGGAGE CONSTITUTIONALLY

PERMISSIBLE WHEN THE SEARCH IS CONDUCTED

WITHOUT CONSENT AND IS NOT PURSUANT TO

ANY RECOGNIZED EXCEPTION TO THE WARRANT

REQUIREMENT?

The defendant was found guilty of the

crime of having a weapon in a motor vehi-

cle in violation of Conn. Gen. Stat.

§29-38. The entire basis of the defen-

dant's conviction was clearly a result of

the obtained from the search of the

briefcase which had been seized from the

Mercury. The defendant contends that this

search was illegal and that the fruits of

this search should have been suppressed.

It is clear that to some extent, due

to the inherent mobility of an automobile

and the diminished expectation of privacy

which surrounds it, the standard of reason-

ableness has been somewhat relaxed with

respect to searches of automobiles:

"But this Court has recognized

significant differences between

Motor vehicles and other property

which permit warrantless searches

of automobiles in circumstances

in which warrantless searches

would not be reasonable in other

contexts."" United States v.

Chadwick, -U.S.-, 53 L.Ed. 2d

538, at 549, 97 S.Ct__ (1977).

On the other hand, '"(t)he word ‘automobile'

is not a talisman in whose presence the

Fourth Amendment fades away and disappears."

10

Coolidge v. New Hampshire, 403 U.S. 443,

29 CE 2d 564, 515 S. Ct. 2022 (1971).

Mere contact with an automobile does not

remove from certain items the legitimate

expectations of privacy an individual

may have in those items. The mere plac-

ing of a closed piece of luggage or a

closed briefcase within an automobile

does not automatically make the contents

of the luggage or briefcase subject to

search, even if a search of the rest of

the automobile may be considered reason-

able under the circumstances:

Luggage contents are not open to

public view, except as a condition

to a border entry or common

carrier travel; nor is luggage

subject to regular inspections and

official scrutiny on a continuing

basis. Unlike an automobile,

whose primary function is trans-

portation, ee is intended as

a repository o personal effects.

In sum, a person's expectations

of privacy in personal luggage are

substantially greater than in an

automobile. United States v.

Chadwick, supra, at 349.

Thus, in order to overcome the "substan-

tially greater" expectations of privacy

in personal luggage and justify a war-

rantiess search of such luggage, more than

the minimum standards of reasonableness

for a warrantless search of an automobile

must be met. Stch a standard was clearly

not met in the instant case. The warrant-

less search of the briefcase in question

cannot be justified under the plain view

exception, under "exigent circumstances",

nor as a search incident to arrest.

ll

The "plain view'' exception would not

allow the search of the contents of the

closed briefcase, although it might allow

a seizure of the briefcase.

"Respondents ' ag, re privacy

interest in the footlocker was

of course not in the container

itself, which was exposed to

public view, but in its contents.

A search of the interior was

therefore a far greater intrusion

into Fourth Amendment values than

the impoundment of the footlocker."

United States v. Chadwick, supra,

at 550 footnote 5.

There were no "exigent circumstances"

sufficient to justify a warrantless search

of the contents of the briefcase. The

location of the briefcase in the car might

have been sufficient exigency to allow a

seizure of the briefcase to preserve it

from vandalism if the Connecticut State

Police were not going to tow the car and

trailer, but this alone could not justify

the "far greater intrusion into Fourth

Amendment values" involved in a search of

the contents. Clearly there was no sus-

picion on the part of Sergeant Janco, who

searched the briefcase, that there were

explosives in the briefcase, else he

— not have opened the briefcase as he

Finally, a warrantless search incident

to arrest is limited to a "search of the

arrestee's person and the area ‘within his

immediate control' - construing that phrase

to mean the area from within which he

might gain possession of a weapon or

destructible evidence.'' Chimel v. Califor-

nia, 395 U.S., 752 at 763, Ted.

12

89 S. Ct. 2034 (1969). The defendant in

the instant case was in custody, having

been arrested at least 15 to 20 minutes

previously. He was outside the car,

some distance from the vehicle, under

the close supervision of at least one

officer at all times. The briefcase in

question was located inside the Mercury,

and all of the doors of the Mercury were

closed. Thus the interior of the vehicle

was not in any sense an area ‘within his

immediate control’. In addition, had the

Connecticut State Police officers on the

scene needed to search the briefcase for

weapons in order to protect themseives,

or had they been in any way concerned

about the contents of the briefcase, the

officers would obviously not have waited

15 to 20 minutes to turn their attention

to the briefcase.

In sum, the warrantless search of

the closed briefcase was not a "reason-

able search" within the meaning of the

Fourth Amendment, and the fruits of this

search - namely, the gun which was the

basis of the defendant's conviction for

possession of a weapon in violation of

Conn. Gen. Stat. §29-38, should have

been suppressed.

13

Il.

IS A WARRANTLESS SEARCH OF THE CONTENTS

OF A FULLY ENCLOSED, WINDOWLESS AND

LOCKED TRAILER CONSTITUTIONALLY PERMIS-

SIBLE WHEN POLICE HAD AMPLE OPPORTUNITY

TO OBTAIN A WARRANT PRIOR TO THE TIME

OF THE SEIZURE AND SEARCH?

The defendant was convicted of

possession of marijuana with intent to

sell (Conn. Gen. Stat. 19-480). The basis

for his conviction was the marijuana dis-

covered in the search of the U-Haul

trailer. The defendant contends that this

search was illegal, in that it was conduct-

ed without a warrant despite the fact that

there was ample opportunity to obtain a

warrant; the defendant therefore contends

that the fruit of the search should have

been suppressed.

It is well established that warrant-

less searches are “per se unreasonable

under the Fourth Amendment - subject only

to a few specifically established and

well delineated exceptions." Katz v.

United States, 389 U.S. 347, at 357, 19

L.Ed. 2d 576, 88 S. Ct. 507 (1967).

Warrantless searches of automobiles

have been upheld in a variety of circum-

stances, and both the Connecticut Superior

Court and the Connecticut Supreme Court

relied on these automobile search cases in

making their decisions. This reliance is

misplaced.

The instant case does not involve the

search of an automobile, but the search of

a locked, fully-enclosed windowless trailer.

Thus one of the primary bases for greater

latitude in automobile searches, namely

14

= <-

the greatly diminished AOE a of

privacy in a vehicle whose interior is

open to public view, does not apply in

this case. On the contrary, sheer logic

of circumstances would indicate a very

substantial expectation of privacy in

the contents of a trailer which are hid-

den from public view and placed behind

securely locked doors. is substantial

expectation of privacy raises a corre-

spondingly substantial burden on the

state to justify the reasonableness of a

warrantless search.

In addition, the various decisions

of this Honorable Court in the area of

automobile searches have focused on

specific factual circumstances, none of

which are applicable in the instant case.

Clearly this was not a custodial search

under South Dakota v. Opperman 428 U.S.

364, 4 .Ed. ; . Ct. 3092 0977).

The search in this case was not for a

“community caretaking function" but a pre-

text search for a criminal investigation.

Therefore the Connecticut Supreme Court's

reliance on South Dakota v. Opperman,

rere, is misplaced. 8S was not a

ed search of the exterior such as

scraping paint and taking tire casts,

‘Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed.

; . Ct. 2464 (1974), but a full

search of the interior contents of a locked

trailer. Finally this was not a situation

in which the basis of the search arose

with an immediacy that did not allow the

opportunity to obtain a warrant. Carroll

v. United States, 267 U.S. 132, 69 L.Ed.

, . Ct. 280. Mobility alone has

been rejected as allowing a warrantless

search. United States v. Chadwick. -U.S.-,

53 L.Ed.2 : — par > wae

discovery of marijuana was clearly

15

anticipated in the instant case, and

the relevant details were known far in

advance of the seizure an? search.

Where the discovery is anticipated,

where the police know in advance

the location of the evidence and

intent to seize it, the situation

is altogether different. The re-

quirement of a warrant to seize

imposes no inconvenience whatever,

or at least none which is constitu-

tionally cognizable in a legal sys-

tem that regards warrantless searches

as 'per se unreasonable' in the

absence of ‘exigent circumstances’.

Coolidge v. New Hampshire, 403 U.S.

443, at 469.

At least as early as March, 1974, the

police had in their possession sufficient

information to obtain a warrant. They

knew the route, the date, the type of

vehicle to be used (a U-Haul trailer), the

type of contraband, the amount of contra-

band, and at least one party who would be

involved in the shipment. They had a

reliable informant. A reliable informant,

combined with the specificity of the in-

formation conveyed, is clearly sufficient

to obtain a warrant under Draper v. United

States, 358 U.S. 307, 3 L.Ed a 327, 79

S.Ct. 329 (1959) and Spinelli v. United

States, 394 U.S. 410, iat L.Ed. 2d 637, 89

5. Ct. 584 (1969).

It may be argued that this informa-

tion would have been "Stale" by April 22,

1974. However, the police had a further

opportunity to obtain a warrant on "fresh"

information in the middle of the day of

April 22, 1974. The informant spoke to

Sergeant Mancini between 12:00 noon and

16

1:00 p.m. on April 22, 1974, and con-

firmed all the previous information. In

addition, the informant communicated the

added specific information that a Mercu-

ry motor vehicle would be used. Once

again, the police had ample opportunity

to obtain a warrant but failed to do so.

The burden is on the State to sus-

tain a warrantless search. Vale v.

Louisiana, 399 U.S. 30 (1970). The

State’s burden in the instant case should

be greater than that required for an

automobile search because there was a

greater eo yy) of privacy in the

contents of a trailer. Since it is clear

that the police had ample opportunity to

obtain a warrant well in advance of the

search of the trailer, the State has

failed to meet its burden of proof that

the warrantless search of the trailer was

necessitated by “exigent circumstances."

17

IIl.

IS ERROR "HARMLESS" WITHIN THE MEANING OF

CHAPMAN V. STATE OF CALIFORNIA AND FAHY

V. STATE OF CONNECTICUT WHEN IT RESULTS

IN THE ADMISSION OF THE PHYSICAL EVIDENCE

USED AS THE BASIS FOR A DEFENDANT'S

CONVICTION?

In connection with the defendant's

motions to suppress the evidence obtained

in the search of the U-Haul trailer, the

attorney for the defendant attempted to

question Sergeant Mancini with respect to

the informant used. The defendant did

not seek the identity of the informant,

but merely sought to discover whether the

informant was a police officer or in the

employ of a police department. The State's

Attorney objected, and the objection was

sustained over defendant's argument re-

garding the relevancy of the information

as it related to the legality of the

search. The Connecticut Supreme Court held

that this was error, but that the error was

harmless sinte the question went to the

reliability of the informant and not to the

guilt of the defendant (Appendix A).

The significance of the information

sought by the defendant goes well beyond

the reliability of the informant. In

effect, the defendant contends that the

question, if answered in the affirmative,

would have provided a further basis for

holding the search of the trailer unrea-

sonable and requiring the fruits of the

search to be suppressed.

Information from an informant who

was a tomy: officer or in the employ of

the police department would have satisfied

18

the test of Aguilar v. Texas, 378 U.S.

108, 12 L.Ed. 1 . Ct. 1509

(1964). Such a factual situation would

have made more apparent than ever the

ample opportunity available to the police

to obtain a warrant, and the resulting :

unreasonableness of the subsequent warrant-

less search of the trailer. Such a factual

situation could well have resulted in the

suppression of the primary evidence admit-

ted in the defendant's trial - namely, the

marijuana discovered in the trailer.

This Honorable Court has held that

. before a federal constitutional

error can be held harmless, the court must

be able to declare a belief that it was

harmless beyond a reasonable doubt."

Chapman v. State of California, 386 U.S.

18, 17 L.Ed. 2d 705, 87 S. Ct. 824, at

828 (1967). An error which potentially

resulted in the admission of evidence

which is clearly the basis of the convic-

tion could not logically be declared harm-

less beyond a reasonable doubt.

A similar holding was reached in Fah

v. State of Connecticut, 375 U.S. 85, 84

5. Ct. 229 (1963): “We find that the

erroneous admission of this unconstitution-

ally obtained evidence at this petitioner's

trial was prejudicial; therefore, the

error was not harmless .. ." The evidence

of the search was prejudicial, and the

defendant was seeking to suppress that

evidence through the questions directed

to Sergeant Mancini about the informer.

One additional point is worthy of

consideration. The Gooden of sustaining

the reasonableness of a warrantless search

is on the State. Vale v. Louisiana, supra.

19

By refusing to allow the defendant's

questions with respect to the status of

the informant, the trial court shifted

the burden of proof onto the defendant.

By refusing to hear evidence which would

potentially support the availability of

a warrant well in advance of the search

of the trailer, the trial court greatly

reduced the burden of the State to show

the reasonableness of the warrantless

search.

CONCLUSION

Based upon the facts hereinabove

set forth and the issues raised in this

Petition, the Appellant-Petitioner,

James E. Runkles, Jr., prays for the

issuance of a writ of certiorari to issue

from this Court to the Supreme Court of

the State of Connecticut.

APPELLANT-PETITIONER

By

Febbroriello & Herbst

355 Prospect Street

Torrington, Connecticut 06790

By

JOSEPH F. KEEFE, ESQ.

Smith, Smith, Mettling

and Keefe

179 Water Street

P.O. Box 1146

Torrington, Connecticut 06790

20

APPENDIX A

Excerpt from Connecticut Law Journal, Vol.

XXXIX, No. 37, March 14, 1978:

CONNECTICUT REPORTS

SUPREME COURT

November Term, 1977

State or Connecticut v. James E. Runxxes, JR.

Hovss, C. J., Corres, Lowe.iz, Boopansx: and Lonoo, Js.

Argued November 10, 1977—decision released March 14, 1978

Information charging the defendant with the

crimes of possession of marihuana with intent to

sell and having a weapon in a motor vehicle,

brought to the Superior Court in Litchfield County

and tried to the court, Speziale, J.; judgment of

guilty and appeal by the defendant. No error.

John P. Febbroriello, with whom, on the brief,

was Peter C. Herbst, for the appellant (defendant).

Robert E. Beach, Jr., assistant state’s attorney,

for the appellee (state).

House, C. J. On a trial to the Superior Court

in Litchfield County, the defendant was found

guilty of the crimes of possession of marihuana

with intent to sell (1973 Public Acts, No. 73-681,

§ 26 [a]) and of having a weapon in a motor vehicle

in violation of § 29-38 of the General Statutes. He

appealed to this court from the judgment and from

the decision of the trial court denying his motion

to suppress evidence.

1A

i Oe a eR he ORK ToL eT sy co, ae ec emm

As the defendant notes in his brief, “(t]he appeal

of the appellant is based upon two basic positions:

one is that there was no probable cause to stop and

search the vehicle of the appellant; and the second

is that if there was probable cause to do so a war-

rant was necessary.” While he has attacked each

conclusion of the court and several rulings on evi-

dence, and also assigns error to the refusal of the

court to add certain facts to its finding, the defend-

ant has not attacked the court’s affirmative findings

of fact.

Because of the nature of the case, it is necessary

to summarize the court’s finding in greater detail

than usual. In 1974, Joseph Mancini was a sergeant

in the Waterbury police department and in charge

of the Naugatuck Valley regional crime squad.

During the months of February and March, he

received information that large shipments of mari-

huana were being sent into Connecticut from Texas

by way of Massachusetts. Sometime before 1 p.m.

and again between 5 and 6 p.m. on April 22, he

received word from a reliable informant, whom he

knew well, that a shipment of 1000 to 1500 pounds

of marihuana coming from El Paso, Texas, would

be transported by U-Haul trailers down U.S. route

7 from Massachusetts into Connecticut. He was

also told that Robert Piccolo of Waterbury was

involved in the shipment and was either leading or

driving a U-Haul trailer or a Mercury. Mancini

knew Piccolo and knew that he was involved with

narcotics. Mancini reported the information to two

sergeants in the Connecticut state police, Frederick

H. Bird and Thomas F. Carney, and gave them a

detailed description of Piccolo. A teletype message

concerning the information was sent out by the state

police to other state police barracks and Sergeant

Carney, a field supervisor with the state police nar-

cotics squad, western division, discussed the mes-

sage with Sergeant Joseph Janco of troop B in

Canaan. The teletype message contained a descrip-

tion of Piccolo.

2A

James M. McGarry, the police chief in Sheffield,

Massachusetts, which town abuts the town of

Canaan, visited troop B at 6:30 p.m., read the

teletype message and took a copy with him. He

returned to Sheffield and stationed himself on the

east side of U.S. route 7 and observed traffic. About

7:30 p.m., McGarry observed a Mercury Marquis

pulling a U-Haul trailer with Texas license plates

proceeding southerly on route 7 and followed it.

He radioed the Great Barrington police and asked

them to notify troop B in Canaar. that he was

following the Mercury Marquis pulling the U-Haul

trailer south on route 7. Following the U-Haul

trailer at a distance quite far behind, he crossed

into Connecticut, keeping the Connecticut state

police advised of his location through the Great

Barrington radio. At one time, the Mercury was

traveling slowly and McGarry observed a small,

black, foreign car in front of it. Both the Mercury,

pulling the U-Haul trailer, and the foreign car

pulled off the highway and into a gas station at the

intersection of U.S. route 7 and route 63. McGarry

continued south on route 63, passing the gas station

on his right. The foreign car had stopped at the

station, facing into route 63 at almost a 90 degree

angle to route 63, and as McGarry passed the sta-

tion his headlights shone on the occupant of that

car whom McGarry observed was an individual

fitting the description of Robert Piccolo as given

in the teletype. McGarry continued a short distance

beyond the station, turned around and went back

to the gas station. By the time he arrived, the

foreign car had left but the Mercury and U-Haul

trailer were still at the station and Sergeant Janco

and Trooper Dante Notte were there. McGarry,

as soon as he arrived, told the officers that the

occupant of the foreign car met the teletyped

description of Piccolo. The defendant, Runkles,

was the driver of the Mercury and McGarry iden-

tified him in the courtroom at the trial.

3A

Trooper Notte had been on patrol duty and had

been alerted by Sergeant Janco to be or the lookout

for the U-Haul trailer on U.S. 7 and had received

by police radio information that Chief McGarry

was following it and that it was probably accom-

panied by an Audi automobile, a small foreign-type

car. When the Audi and U-Haul trailer turned into

the gas station, Notte followed them and went along-

side the Mercury with his lights flashing on the oper-

ator’s door. The Audi was at the station less than

a minute before it left the scene and Notte shouted

to another trooper to pursue it. The only person

in the Mercury was the defendant, Runkles, who

was sitting in the driver’s seat. Notte usked the

defendant for his license and registration and

the defendant produced his license and said that the

registration was in his briefcase which Notte noticed

was on the floor in the back seat immediately behind

Runkles.

At this point, Sergeant Janco arrived and Notte

told him what had happened. At Janco’s request,

Runkles got out of the car. When asked what was

in the U-Haul trailer, Runkles said, “antiques.”

In response to a request that he unlock the trailer,

the defendant stated that he did not have the key

because it had been mailed to a forwarding address.

When asked if he minded whether the officers opened

the trailer, he stated that they had no reason to do

so. Although the doors to the trailer were locked,

they were loosely fitted. Trooper Notte examined

the lock and the doors and, as they were loose, he

knelt down and flashed his light into the opening

underneath the door near the bottom of the trailer

and observed plant material in burlap bags covered

with plastic. He also noticed a definite strong herb-

type scent which, from his experience, he identified

as marihuana. Sergeant Janco similarly inspected

the trailer and confirmed Trooper Notte’s findings

whereupon the lock was snapped and they found in

the trailer 999 pounds of marihuana contained in

4A

twenty-three bags. It had a value of about $320,000.

Tests later conducted by the state toxicology labora-

tory confirmed that it was marihuana.

After discovering the marihuana, Trooper Notte

read the “Miranda” warning to the defendant and

placed him under arrest. Sergeant Janco then

opened the front door of the Mercury and saw that

the briefcase was now on the front seat of the car.

Upon opening the briefcase, Janco found it con-

tained a small loaded NVR .22-caliber revolver.

Runkles had no permit to carry the gun. The black

Audi automobile registered in the name of Robert

Piccolo was later found in Torrington where it had

been abandoned.

The defendant briefed five claims of error in the

refusal of the trial court to make corrections in

the finding, but it does not appear that the claims

have merit. Only admitted or undisputed facts will

be added to a finding; Practice Book 4 628 (a);

Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 368,

362 A.2d 519; and a finding will not be corrected

merely to insert therein in one place a fact already

found in another. Cleveland v. Cleveland, 165 Conn.

95, 96, 328 A.2d 691.

The defendant’s claim that the evidence seized at

the time of the arrest was improperly admitted in

evidence is predicated on his assertion that the

court erred in concluding that the police had prob-

able cause to search the U-Haul trailer, automobile

and briefcase without a warrant. The defendant’s

reliance upon* the holding of the United States

Supreme Court in Whiteley v. Warden, 401 U.S.

560, 91 S. Ct. 1031, 28 L. Ed. 2d 306, is misplaced.

In that case the court (p. 567) reaffirmed its decision

in Draper v. United States, 358 U.S. 307, 79 S. Ct.

329, 3 L. Ed. 2d 327, that although an informer’s

tip by itself may not support a finding of probable

cause for an arrest and search, nevertheless, addi-

tional information gathered by the arresting officers

5A

Te ae ee ee ee ee eee et .

in an investigation undertaken as a result of the

tip, which information is corroborative of that tip

that the arrestee has committed or was in the

process of committing a felony, may supply suff-

cient probable cause for an arrest and search. That

was clearly the circumstance in the present case.

The information given to the police by the informer

was detailed, Piccolo was identified by name and

description, the route to be taken by Piccolo and

the U-Haul trailer with Texas registration ‘was

foretold, and the officers detected the odor of mari-

huana from the trailer. All of these served amply

to corroborate the informer’s tip. “Police action

may be justified by the collective knowledge of the

law enforcement organization. State y. Romano,

165 Conn. 239, 246, 332 A.2d 64; State v. Cobuzzi

[161 Conn. 371, 377, 288 A.2d 439, cert. denied, 404

U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664]; see

United States ex rel. LaBelle vy. LaVallee, 517 F.2d

750, 753 (2d Cir.).” State v. Acklin, 171 Conn. 105,

111-112, 368 A.2d 212. We conclude that the officers

had ample grounds for a reasonable belief that the

defendant was committing a felony and that they

had sufficient probable cause to justify the imme-

diate search and his arrest under the holdings of

the United States Supreme Court and of this court.

See South Dakota v. Opperman, 428 U.S. 364, 96

S. Ct. 3092, 49 L. Ed. 2d 1000; Adams v. Williams,

407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612; Draper

v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed.

2d 327; State v. Schoenbneelt, 171 Conn. 119, 368

A.2d 117; State v. Acklin, supra; State v. Love, 169

Conn. 596, 600, 363 A.2d 1035.

Nor do we find any error in the admission into

evidence of the loaded gun which the police found

in the defendant’s briefease which they searched

after they had arrested the defendant. The search

and seizure took place at the site of and immediately

after the arrest of the defendant and after the offi-

cers had observed that the briefcase which had been

on the floor of the ear behind the defendant had

6A

been moved to the passenger side of the front seat.

“[T)he situation unquestionably provided the exi-

gent circumstances and probable cause to justify

the search. Chambers v. Maroney, 399 U.S. 42, 90

S. Ct. 1975, 26 L. Ed. 2d 419, rehearing denied, 400

U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94.” State v.

Watson, 165 Conn. 577, 588, 345 A.2d 532; see T'exas

v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d .

209; State v. Acklin, supra, 113; Staie v. Cari, 163

Conn. 174, 187, 303 A.2d 7.

The defendant’s remaining claim is that the court

erred in sustaining the state’s objection to a ques-

tion asked during the cross-examination of Sergeant

Mancini. The sergeant had testified concerning the

information he had received from an informant

which information led to the apprehension of the

defendant. On cross-examining the officer, the

defendant asked: “For the information that you

gained from this particular informer, did you com-

pensate him in any way, shape or form?” The state

objected that the in/ormation sought was irrelevant

and immaterial. The defendant claimed that the

question was a proper one because he wished to find

out if the informer was, in fact, “an agent under the

control of the witness,” if he were an employee, and

“perhaps, the reason why he stepped forward as

an informant, whether it’s for compensation, some

type of personal gain or whatever.” He also stated:

“TI think it goes to the reliability of the informant.

It would also go to the question of the search in

this matter, Your Honor. I feel, as I expressed

during the motion to’suppress, that if this particular

informant were an active employee or otherwise

associated with the narcotics squad, then the infor-

mation that he has is information that the narcotics

squad had well in advance of the particular events

on April 22.”

The ruling of the court was a discretionary one

and “[t}he court has a wide discretion in its rulings

on the relevancy of evidence.” State v. Carr, 172

Conn. 458, 464, 374 A.2d 1107; State v. Saia, 167

7A

OE LL

Conn. 286, 291, 355 A.2d 88; State v. Blyden,

165 Conn. 522, 531, 338 A.2d 484. No precise and

universal test of relevancy is furnished by the law,

and the question must be determined in each case

according to the teachings of reason and judicial

experience. Eason v. Williams, 169 Conn. 589, 591,

363 A.2d 1090; State v. Towles, 155 Conn. 516, 523,

235 A.2d 639. While the identity of an informer

is information as to which the state has a qualified

privilege “to further and protect the public interest

in effective law enforcement”; State v. Harris, 159

Conn. 521, 528, 271 A.2d 74; Roviaro v. United

States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d

639; the question to which objection was sustained

did not require disclosure of the identity of the

informer and we are inclined to believe that the

court’s ruling was an erroneous one. Nevertheless,

any error committed was clearly harmless. In order

to constitute reversible error, the ruling must have

been both erroneous and harmful. Milton v. Wain-

wright, 407 U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1;

State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147,

cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d

288 ; State v. Fredericks, 154 Conn. 68, 72, 221 A.2d

585. The question asked of the witness had nothing

to do with the actual guilt or innocence of the

defendant but concerned the reliability of the infor-

mation supplied to the police by the informant. The

reliability and accuracy of the information supplied

were fully confirmed by the subsequent events and

the evidence of the defendant's guilt was so over-

whelming that the error, if any, was harmless. We

cannot find any possibility of prejudice. State v.

Carr, supra, 471; see also State v. Rado, 172 Conn.

74, 86, 372 A.2d 159; and Milton v. Wainwright,

supra, 372, 377.

There is no error.

In this opinion the other judges concurred.

8A

APPENDIX B

8418

STATE OF CONNECTICUT

vs.

JAMES E. RUNKLES, JR.

SUPREME COURT OF THE STATE OF CONNECTICUT

You are hereby notified that your

Motion for Rehearing, dated April 7, 1978,

was denied by the Connecticut Supreme Court

on April 18, 1978.

/s/ Thomas H. Abraham

erk

1B