Petition — Januszewski v. Connecticut

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80-799. NOV 17 1980

No.

MICHAEL RODAK, JR., CLERK

Su The

Supreme Court Of The United States

OCTOBER TERM, 1980

JEROME JANUSZEWSKI, Petitioner

vs.

STATE OF CONNECTICUT, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

, RONALD E. CASSIDENTO, ESQ.

543 Prospect Avenue

West Hartford, CT 06105

(203) 233-5575

Attorney for Petitioner,

Jerome Januszewski

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

JEROME JANUSZEWSKI, : PETITION FOR

Petitioner : WRIT OF CERTIORARI

VS. : TO THE SUPREME COURT

STATE OF CONNECTICUT : OF THE STATE OF

Respondent : CONNECTICUT

NOVEMBER 12, 1980

TO THE HONORABLE WARREN [. BURGER, CHIEF

JUSTICE OF THE UNITED STATES, AND TO THE

HONORABLE ASSOCIATE JUSTICES OF THE UNITED

STATES SUPREME COURT:

NOW COMES, JEROME JANUSZEWSKI, by his

Attorney, Ronald E. Cassidento, Esq., 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 Connecti-

cut, to review that certain published decis-

ion, State vs. Januszewski, 42 Conn. Law

Journal No. 8, August 19, 1980, denying an

appeal from a decision of the Connecticut

Superior Court. Petitioner, Jerome

Januszewski, prays that a Writ of Certiorari

issue to review the judgment of the Connect-

icut Supreme Court entered on August 19,

1980, rehearing denied on September 18,

1980.

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED ................ ae

PADUR OF AUTHORTEIES 6255 0 oss i-iv

OE I sc ek ays we a 1

COSMO ee ay, 162

UNITED STATES CONSTITUTIONAL

PROVISIONS AND CONNECTICUT

GENERAL STATUTES INVOLVED........... 2-6

Seaver OF FACTS»... 3.0... s eee 6-12

oe Bis ew be ace ened oo. 12-33

Saga TREN SIS OR ee a a 33

APPENDIX "A"

(OPINION BY THE SUPREME COURT

OF THE STATE OF CONNECTICUT)..... 1A

APPENDIX ''B"

(DENIAL OF PETITION FOR REHEARING) 31A

Pursuant to Rule 21, Rules of the

Supreme Court of the United States, Peti-

tioner submits the following:

} eae

Ill.

QUESTIONS PRESENTED FOR REVIEW

ID THE CONNECTICUT SUPREME COURT

COMMIT ERROR IN FAILING TO SUPPRESS

THE EVIDENCE SEIZED IN THE DEFENDANT'S

VEHICLE?

DID THE CONNECTICUT SUPREME COURT ERR

IN CONCLUDING THAT THE DEFENDANT WAS

NOT SUBJECTED TO A ''CUSTODIAL INTER-

ROGATION" AND THUS HIS RIGHTS AS

STATED IN MIRANDA v. ARIZONA, DID NOT

APPLY?

DID THE CONNECTICUT SUPREME COURT ERR

IN CONCLUDING THAT THE "NON-DRUG ~

DEPENDENCY" STATUS WAS NOT AN ELEMENT

OF THIS CRIME DEFINED IN CONNECTICUT

GENERAL STATUTES §19-480a(b) AND THUS

SHIFTING THE BURDEN OF PROOF TO THE

DEFENDANT ON THIS ELEMENT?

Re al

TABLE OF AUTHORITIES

Arkansas v. Sanders,

Rae U.S. FAP AWOTO) ck keee

Bradford v. State,

~ Court of Appeals of Indiana

401 N.E. 2d 77 (1980).......

Carroll v. United States,

Chambers v. Maroney,

399 U.S. 42 (19705 ey Ge away

Columbe v. Connecticut

367 U.S. 568, 603, 81 S.Ct.

1860, 6 L.Ed. 2d 1031 ......

Davis v. North Carolina,

ci. 2en.

ORAS “eae

Fiske v. Alabama,

Soni ies keke 77 S.Ct. 261,

b Sgn Oe PURO. Ouse welee yi

Miranda v. Arizona,

384 U.S. 436, 444, 86 S.Ct.

ge ES a a ee ee

Moore v. State,

Mullaney v. Wilbur,

ve me ee oe ¢ LS

Oregon v. Mathiason,

735 U.S. 492, 494, 97 S.Ct.

fk; S0'Gee. SE FU

PAGES

> he eee

16,

1612, 18,

Ark. 394 S.W.2d 245 (1980)..

3 . ; ‘

Me,

, ;

Patterson v. New York,

to aR kee Fe 29, 30

Payne v. Arkansas,

U. 8 S.Ct. 844

2 L.Ed. “2d 975 Gh, NORA FoR at | 21

People v. Chavers,

App. 164 Cal. Rptr. 449 (1980) 16

People Vv. Menjores.

; a 53 Cal. Rptr.

224, 591 Pia oee 42979). 2%). 15

People v. Musante,

2 Cal. App. 3d 156, 162 Cal.

Rs a SSO DR Wie. cise s 0s o ees 16

Schneckloth v. Bustamonte,

412 U.S. 218, 93 §.Ct. 2041,

Be as, CU Ss ob eae de 0 to's 40'.> Zi

State v. Bennett,

171 Conn. 47, 368 A.2d 184... ; 24

State v. Corrigan,

4 Conn. Cir. 190, 193

a 20, 26

State v. Petong

) 43 Or. App. 183, 602 P.2d

PT RRO ais oie e wale ee bt's 16

State v. Delorenzo,

‘166 N. J. Super. 483 (1979).. 15

State v. Januszewski,

onn. Law Journal No. 8

CO MO MEDD 5 es oes Cb ole ac 1

State v. Schaffer,

onn. 309, 360 A.2d 893.. 24, 25

iii

ae te

State v. Southwell,

Fla. App. 369 So0.2d 371

CRUE ia oo RU Caw ew Os

State v. Szabo,

Conn. 289, 291, 348

EP Ta We 840g 66 CO 0 6 Niacin 20, 24,

State v. Tellez,

6 Arizona App. 251, 431, P.2d

691, 25 ALR 3R 1063

United States v. Bella

We Reds ABO CUTS) ices. ce.

United States v. Blue

384 U.S. 251,

416, 16 L. Ed. 2d 5

6 S.Ct.

oes, O.8 05,0 6 ©

United States v. Chadwick,

Se a CRORES 6 ke gies bebe es

United States v. Dien

~~ 609 F.2d 1044 (19790)

United States v. Mannino,

( ee

United States v. Markland,

. Supp.

489 F. Supp. 932 (D. Conn. 1980)

United States v. Miller,

United States v. Rivera,

486 F. Supp. 1025 ¢

r te

OPINION BELOW

The citation of the judgment which

review is sought herein is State v. Janus-

zewski, 42 Conn. Law Journal No. 8, pg. 44

(August 19, 1980), Ath. Ri: 2d:

(unpublished). A petition for rehearing

was filed on August 27, 1980 and the rehear-

ing was denied September 18, 1980.

This opinion was rendered by the Supreme

Court of the State of Connecticut. A copy |

of this opinion is appended as Appendix "A."

JURISDICTION

The grounds upon which the jurisdiction

of this Honorable Court is invoked are:

(i) the date that the judgment which

is sought to be reviewed was entered is

August 19, 1980.

(ii) the petition for rehearing ie

made on August 27, 1980 she denied on

September 18, 1980 by the Connecticut

Supreme Court (Appendix "B"), and all

state remedies have been exhausted.

ring

28 U.

(iii) the statutory provision confer-

jurisdiction on this Honorable Court is

S.C. 1257 (3) which provides:

Final judgments or decrees rendered

by the highest court of a state in

which a decision could be had, may

be reviewed as follows:

...By 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 laws of the United States

or where any title, right, privilege

or immunity is specially set up or

claimed under the Constitution, treat-

ies or statutes of or commission held

or authority exercised under, the

United States. (June 25, 1948, c. 646,

§1, 62 Stat. 929).

UNITED STATES CONSTITUTIONAL_ PROVISIONS

AND CONN TATUT NVOLVED

FOURTH AMENDMENT:

"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 describ-

ing the place to be searched, and the

persons or things to be seized."

FIFTH AMENDMENT:

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment

of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in

the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same

offence to be twice put in jeopardy of

life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty or property without due

process of law; nor shall private

property be taken for public use, with-

out just compensation.

FOURTEENTH AMENDMENT :

"Section 1. All persons born or nat-

uralized 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

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or proper-

ty, without due process of law; nor

deny to any person within its juris-

— the equal protection of the

aws."

CONNECTICUT GENERAL STATUTES:

§19-474 - Burden of Proof of Exception,

Excuse, Proviso or Exemption

In any complaint, information or in-

ahi

dictment, and in any action or proceed-

ing brought for the enforcement of any

provision of this part, it shall not

be necessary to negative any exception,

excuse, proviso or exemption contained

in said section, and the burden of

proof of any such exception, excuse,

proviso or exemption shall be upon the

defendant.

§19-480a(b):

Any person who manufactures, distributes,

sells, prescribes, dispenses, compounds,

transports with the intent to sell or

dispense, possesses with the intent to

sell or dispense, offers, gives or ad-

ministers to another person any narcotic

substance, hallucinogenic substance

other than marijuana, amphetamine-type

substance, or one kilogram or more of a

cannabis-type substance except as auth-

orized in this chapter, and who is not

at the time of such action a drug-

dependent person, for a first aftenes

shall be imprisoned not less than five

years nor more than twenty years; and

for each subsequent offense shall be

imprisoned not less than ten years nor

more than twenty-five years. The exec-

ution of the mandatory minimum sentence

imposed by the provisions of this sub-

section shall not be suspended except

the court may suspend the execution of

such mandatory minimum sentence if at

the time of the commission of the of-

fense

(1) such person was under the age

of eighteen years or,

(2) such person's mental capacity

was significantly impaired but

not so impaired as to constitute

a defense to prosecution.

lf a fi iia leat

§53a-10: - Affirmative Defense:

(a) In any prosecution in which the

criminal liability of the defendant is

based upon the conduct of another

person under section 53a-8, it shall

be a defense that the defendant termin-

ated his complicity prior to the conm-

mission of the offense under circunm-

stances:

(1) wholly depriving it of effec-

tiveness in the commission of

the offense, and

(2) manifesting a complete and

voluntary renunciation of his

criminal purpose.

(b) for purposes of this section, re-

nunciation of criminal purpose is not

voluntary if it is motivated, in whole

or in part, by circumstances, not

present or apparent at the inception

of the actor's course of conduct, which

increase che probabili:t 7 of detection

or apprehension or which make more

difficult the accomplishment of the

criminal purpose. Renunciation is not

complete if it is motivated by a de-

cision to postpone the criminal conduct

until a more advantageous time or to

transfer the criminal effort to another

but similar objective or victim.

(1969, P.A. 828, §10, eff. Oct. 1, 1971;

1971, P.A. 871, §3.)

§53a-12: - Defenses; Burden of Proof

(a) When a defense other than an

affirmative defense, is raised at a

trial, the state shall have the burden

of disproving such defense beyond a

reasonable doubt;

(b) When a defense declared to be an

affirmative defense is raised at a

trial, the defendant shall have the

burden of establishing such defense by

a preponderance of the evidence.

(2969, P. A. S26 $12, eff. Get. 2, L97a),

CONCISE STATEMENT OF FACTS

On April 29, 1977, at approximately

3:30 P.M., Trooper Michael Cope of the

Connecticut State Police was travelling

southbound in Preston, Connecticut. He

noticed a Cadillac parked next to a motor-

cycle in a commuter parking lot. Both ve-

hicles were facing Route 12. When the

Trooper noticed two people in the front

seat of the Cadillac, he decided to turn

into the parking lot. As he did so, lhe ob-

served the person, later identified as Bruce

Kenyon, who was seated in the passenger seat

of the Cadillac, drop down from the front

seat and crawl out of the door and under the

motorcycle parked next to the automobile.

The Trooper blocked the Cadillac by parking

in front of it and proceeded to investigate

the matter.

As he did so, the person seated in the

driver's seat locked the passenger door of

the vehicle, exited from the driver's door

and then locked that door. Cope recognized

the person who had exited from the driver's

seat as Jerome Januszewski, the defendant,

who the Trooper knew had been previously

arrested and convicted of a drug-related

offense. When Cope asked the defendant and

the passenger what they were doing, no

explanation was given and the defendant be-

came hyperactive and nervous. Cope then

noticed a green garbage bag on the floor of

the front seat of the Cadillac, and requested

permission of the defendant to examine the

contents. The contents of the bag were not

visible. When this permission was denied,

Cope returned to the police vehicle to check

the automobile registration and identifica-

tion of the defendant and the person with

him, who, evidently, was the operator of

the motorcycle. While Cope was in his

vehicle he also called on his police radio

for his supervisor and another trooper.

Trooper Cope continued to block the vehicle

while he waited for assistance. During the

time that Cope was in the police vehicle,

the defendant and the person with him wan-

dered freely around the parking lot until

the defendant approached the police vehicle

and asked Cope if they could speak together.

The defendant then entered the police vehicle

and stated: '‘' ‘Look Mike, you got me, but

let me go and I'll work for you,' or words

to that effect. [State's Attorney]: Did

you reply to that? [Trooper Cope] Yes, sir.

I stated, ‘How much grass?' That was it.

Meaning, how much grass was in the bag, or

in the car, or in the garbage bag. [State's

Attorney]: Did he answer that question?

[Trooper Cope]: Yes, sir. He stated,

'Ten big ones.' [State's Attorney]: What

does that mean, or what do you understand

that to mean through previous experience,

training on the streets, ‘ten big ones?'

[Trooper Cope]: Ten pounds."

Shortly after this exchange, the sub-

stance of which the defendant does not dis-

pute, Sergeant Stuyniski arrived on the

scene and the defendant was arrested. After

the arrest, the officers requested the keys

to the Cadillac from the defendant, but he

responded by saying that he did not have

them. When Sgt. Stuyniski indicated that

if the defendant did not surrender the keys

the automobile might be damaged as a result

of the police gaining entry forcibly, the

defendant gave the officer.the keys. The

officer then entered the vehicle and removed

from the front seat the green bag, in which

they discovered ten individual ziplock plas-

tic bags containing a substance later iden-

tified as marijuana. The police did not

search the trunk of the Cadillac at this

time. Instead, the officers transported the

Cadillac to the police barracks and obtained

a search warrant to search the’trunk. On

searching the trunk, the officers discovered

forty-eight ziplock plastic bags, each of

which contained one pound of a substance

later identified as marijuana. Conn. Law

Journal, Vol. 42, Page 45 (August 19, 1980).

Before the trial, the defendant filed

a Motion to Suppress all Evidence seized

from his automobile as well as to suppress

the statements made by the defendant. The

aforesaid motions were denied.

| The matter was then tried to Jury

and the defendant was convicted.

At the Jury trial, the defendant was

charged with a violation of Conn. General

Statute §19-480a(b) which is printed above.

The Trial Court charged the Jury

that the State must prove beyond a

reasonable doubt that the defendant is not

a drug-dependent person as the sixth element

Br.

of this crime. The Trial Court further

stated that since most men are not drug

dependent, the law presumes that the accused

was not drug dependent at the time of the

incident. Since there was no evidence of

drug dependency introduced in this case, the

Court told the Jury that it may safely as-

sume that the accused was not drug dependent.

The court went on to say that the defendant

had the burden of going forward to show that

he was not drug dependent, and since he

offered no evidence of drug dependency, the

Jury could conclude that the accused was not

drug dependent, the sixth element of the

crime.

3 The defendant-appellant then took an

appeal to the Connecticut Supreme Court,

having preserved his rights of appeal at the

trial level. In addition, the Connecticut

State Supreme Court interpreted for the

first time Conn. General Statute §19-480a(b)

indicating that the issue of drug dependency

is not an element of the crime; thac is,

whether the fact in question is part of the

so-called "corpus delicti" of this statute.

It thus treated the drug-dependency issue

as an Affirmative Defense to be proven by

the defendant.

ARGUMENT

DID THE CONNECTICUT SUPREME COURT

COMMIT ERROR IN FAILING TO SUPPRESS THE EVI-

DENCE SEIZED IN THE DEFENDANT'S VEHICLE?

The petitioner requests this Court to

grant certiorari because he feels that the

decision of the Supreme Court in regard to

the search of his car and in particular the

search of the green garbage bag is in con-

trovention of this Court's decision in

Arkansas v. Sanders, 442 U.S. 753, (1979).

The Connecticut Supreme Court's ruling on

this issue is also in conflict with the

decisions of many other state and federal

courts.

The Connecticut Supreme Court held

that the search of the riding compartment of

the defendant's Cadillac did not violate the

warrant requirement of the Fourth Amendment.

In so doing, it relied on the so-called

"automobile exception" derived from cases

such as Carroll v. United States, 267 U.S.

132 (1925) and Chambers v. Maroney, 399 U.S.

42 (1970). In doing so, however, the Court

failed to properly apply the decisions of

United States v. Chadwick, 433 U.S. 1 (1977)

and Arkansas v. Sanders, 442 U.S. 753 (1979).

The holding of the cases cited above

may be stated succinctly as requiring a

warrant for a police search of luggage taken

from properly stopped and searched automo-

biles in the absence of exigent circumstan-

ces. Where the police are in control of the

automobile and its occupants, and there is

no danger that the luggage and its contents

will be rendered unavailable to due legal

process, the Fourth Amendment requires the

obtaining of a search warrant.

In applying these decisions to the

facts in the instant case, it is clear that

a warrant should have been required to search

the bag in the defendant's automobile. At

the time of the search, the defendant had

been placed under arrest and had surrendered

the keys to the trooper after being told his

failure to do so would result in the forci-

ble entry of the automobile. Another trooper

(Sgt. Stuyniski) had arrived to assist the

arresting officer. The trooper had no

reason to fear that the bag contained a

weapon that the defendant might use against

him since it is clear that the defendant

had no ready means of access to the bag.

Perhaps most importantly, there was no dan-

ger of the car or the bag being moved or

tampered with since the Cadillac was immed-

iately transported to the state police

barracks. The trooper thereupon obtained

a search warrant to search the trunk of the

automobile. Obviously, it would not have

been at all burdensome for the troopers to

postpone their search of the bag until they

obtained a search warrant for it as well.

The Connecticut Supreme Court apparently

felt that the defendant's bag was not suf-

ficiently comparable to the luggage in

Chadwick and Sanders to warrant protection.

However, Sanders doctrine is not limited to

luggage. The rationale of Sanders has been

applied to a guitar case, United States v.

Bella, 605 F.2d 160 (1979); a portfolio,

United States v. Miller, 608 F.2d 1101 (1979)

and sealed cardboard cartons, United States

v. Dien, 609 F.2d 1044 (1979) and United

States v. Mannino, 487 F. Supp. 508 (1980).

In the state courts, Sanders has been exten-

ded to a tote bag, People v. Minjores, 24

Cal. 3d 410 153 Cal. Rptr. 224, 591 P2d 514

(1979); a duffel bag, State v. DeLorenzo,

166 N.J. Super. 483 (1979); an overnight

bag, State v. Southwell, Fla. App. 369 So2d

371, (1979); a camera case, State v. Delong,

43 Or. App. 183, 602 P.2d 665 (1979); closed

but unsealed boxes, People v. Musante, 102

Cal. App. 3d 156, 162 Cal. Rptr. 158 (1980);

a shaving kit, Moore v. State, Ark. 594

S.W.2d 245 (1980); a purse, Bradford v. State

Court of Appeals of Indiana, 401 N.E.2d 77

(1980) and a mylar or vinyl bag, People v.

Chavers, App. 164 Cal. Rptr. 449 (1980).

Two cases involving fact patterns sub-

stantially similar to the present case are

United States v. Markland, 489 F. Supp. 932

(D. Conn 1980) and United States v. Rivera,

486 F. Supp. 1025 ( 1980). In Markland,

the district court applied the Sanders rule

to a plastic tote bag in which undelivered

mail was found. United States v. Rivera,

involved the search of plastic trash bags,

just as the present case does. The district

court nevertheless held Sanders applicable,

stating:

"Here, of course, we are not dealing

with a usual type of luggage or duffel

bag--a common repository of personal

effects. But the question must answer

itself. One man's garbage bag is

another man's luggage."

Thus it is clear that it is not neces-

sary for an article to be categorized strict-

ly as luggage for the Sander's doctrine

to apply. As long as the article is one in

which there could be a "reasonable claim of

privacy" and there is a lack of exigent

circumstances, the mere fact that the article

was found in an automobile is not enough to

provide an exception to the warrant require-

ment of the Fourth Amendment.

The decision of the Connecticut Supreme

Court on this issue is in conflict with the

decisions of this Court as well as the de-

cisions of several federal circuit courts of

appeal and many state courts. Thus, the

defendant respectfully requests that this

Court grant a Writ of Certiorari to resolve

the conflict on this issue.

If.

DID THE CONNECTICUT SUPREME COURT ERR

IN CONCLUDING THAT THE DEFENDANT WAS NOT

SUBJECTED TO A "CUSTODI INTERROGATION” AND

THUS HIS RIGHTS AS STATED IN MIRANDA v.

ARIZONA DID NOT APPLY?

The Connecticut Supreme Court concluded

that the defendant had not been subject to

custodial interrogation and thus the Miranda

warnings were not required. In reaching

this conclusion, the court has failed to

examine the "totality of the surrounding

circumstances" in light of the Miranda re-

quirements of due process.

Miranda v. Arizona, 384 U.S. 436, 444,

86 S.Ct. 1612 16 L.Ed. 694, has firmly es-

tablished the principle..."the prosecutor

May not use statements, whether exculpatory

or inculpatory, stemming from custodial in-

terrogation without procedural safeguards

effective to secure the privilege against

self-incrimination. By custodial interro-

gation, we mean questioning initiated by law

enforcement after a person has been taken

oat

‘a

into custody or otherwise deprived of his

freedom of action in any significant way."

The "procedural safeguards" mentioned

above are the so-called "Miranda warnings"

that is, informing a suspect of his right to

remain silent; that any statement he does

make can and will be used asainst him; and

that he has the right to the presence of an

attorney. “Miranda v. Arizona, supra, at

444, 445. In the present case, these warn-

ings were not given until after the defendant

‘had made incriminating statements to Trooper

Cope and after Trooper Cope had focused on

the defendant as a suspect.

Miranda does not preclude on-the-scene

questioning of a person in the investigation

of a crime as long as that questioning is

routine in nature.

"On-the-scene questioning as to facts

surrounding a crime or other general

ye of citizens in the fact

inding process is not affected by our

holding. It is an act of responsible

citizenship for individuals to give

whatever information they may have to

aid in law enforcement. In such sit-

uations the compelling atmosphere in-

herent in the process of in custody

interrogation is not necessarily

present."

Miranda v. Arizona, supra, at 477-478;

State v. Szabo, 166 Conn. 289, 291, 348 A.2d

588. Nor are voluntary statements or con-

fessions barred, so long as the statements

were truly voluntary and the person making

them was not in custody or had not been de-

prived of his freedom of action in any way.

Miranda, supra, at 447; State v. Corrigan,

4 Conn. Cir. 190, 193, 22B A.2d 568.

In Schneckloth v. Bustamonte, 412 U.S.

218, 93S.Ct. 2041 36 L.Ed. 2d 854, the Court

discussed the voluntariness of statements

made to police, although the case dealt pri-

marily with a voluntary consent to search a

motor vehicle. The Court stated that volun-

tariness was to be determined by "the totali-

ty of all surrounding circumstances...both

the characteristics of the accused and the

details of the interrogation." Schneckloth

v. Bustamonte, supra, at 226. Thus, in

determining whether a defendant's will was

overborne in a particular case, such factors

as the lack of education of the accused,

Payne v. Arkansas, 356 U.S. 560, 78 S.Ct.

844, 2 L.Ed 2d 975, his low intelligence.

Fiske v. Alabama, 352 U.S. 191, 77 S.Ct. 281,

1 L.Ed. 2d 246, and the lack of advice to the

accused as to his constitutional rights,

Davis v. North Carolina, 384 U.S. 737, 86

S.Ct. 281, 16 L.Ed. 2d 895, have all been

taken into account in finding a statement

was not made voluntarily. In all of these

cases, the Court ''determined the factual

circumstances surrounding the confession,

assessed the psychological impact on the

accused."' Schneckloth v. Bustamonte, supra,

at 226; Columbe v. Connecticut, 367 U.S. 568,

603, 81 S.Ct. 1860, 6 L.Ed. 2d 1037.

The relevant facts are as follows:

Trooper Cope pulled into the commuter lot to

investigate the defendant's presence there,

as the situation looked suspicious to him.

These suspicions were further aroused when

he saw Bruce Kenyon drop down in his seat,

open the door and fall to the ground, and

crawl under his motorcycle. The trooper

pulled his vehicle "nose to nose" with the

defendant's, preventing any possibility of

the defendant's leaving with his vehicle.

When the defendant got out of his car, lock-

ing it behind him, he appeared nervous and

could not explain his presence there. Troop-

er Cope recognized him as a known drug dealer

previously convicted of a drug related of-

fense. Trooper Cope looked into defendant's

car and saw a large green trash bag filled

with something. Although he could not see

inside the bag, he surmised, based on past

experience, and knowledge of the defendant,

that it probably contained marijuana. He

asked the defendant if the bag contained

marijuana and the defendant replied that it

did not; that it contained his dirty laundry.

Trooper Cope radioed for assistance from his

patrol car and the defendant came over and

asked to speak with him. This was agreed to

and both men sat in the patrol car. The de-

fendant admitted to Trooper Cope that he had

him and if he would let him go he would work

for him. Trooper Cope replied by asking how

much marijuana was in the bag and the defen-

dant replied ten (10) pounds. Backup help

arrived, the defendant was arrested, and the

car and marijuana then seized.

It seems obvious from these facts that

Trooper Cope suspected the defendant of il-

legal possession of marijuana from the time

he saw the bag inside the defendant's vehicle

but at the very latest, when the defendant

told the trooper that he wanted to speak to

him. At this point, any statements elicited

from the defendant. were subject to "Miranda"

warnings and Trooper Cope was required to so

advise the defendant.

Once the police shift their investigation

from one of routine information gathering to

one of accusational criminal police work or

are focusing on the defendant as a potential

target or criminal allegations, the Miranda

warnings become mandatory. This is when the

defendant is deemed to be in custody or de-

prived of his freedom of action. State v.

Szabo, supra, at 289; State v. Bennett, 171

Conn. 47, 368 A.2d 184. As such once Trooper

Cope suspected the defendant of possession of

marijuana he had a duty to inform him of. his

rights, before asking the defendant to speak.

To determine whether the defendant was

"in custody or otherwise deprived of his

freedom of action,'’ the Courts have used a

two-pronged test:

1. Was the defendant's ability to

depart deprived in any way; and

2. Was the nature of the questioning

accusatorial?

Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.

Ct. 711, 50 L.Ed. 2d 714; State v. Schaffer,

168 Conn. 309, 360 A.2d 893. Mathiason

further held thet Miranda requires warnings

to combat a situation in which there are

“inherently compelling pressures which work

to undermine the individuals will to resist

and to compel him to speak where he would not

otherwise do so freely," supra, at 495.

Thus, in Schaffer, supra, the defendant

made incriminating statements when identify-

ing his murdered wife's body at police head-

quarters, but Miranda did not apply as he was

not a suspect and was free to leave at any

time, Schaffer, supra, at 3l1l. In State v.

Szabo, supra, Miranda did not apply either.

There, an accident victim's statements re-

garding his thefts of the vehicle involved

were also made in the course of routine in-

formation gathering and while he was not under

suspicion of any crime. In neither case was

the defendant the subject of accusatorial

questioning nor his freedom of action impaired.

Both tests must be met before Miranda

applies; mere suspicion of a crime will not

invoke the Miranda requirement. There must

be some restrictions on the accused's free-

dom of action so as to create a coercive

atmosphere and cause the defendant to speak

where he would not ordinarily do so.

Here, the defendant's vehicle was block-

ed, he knew of Trooper Cope'’s suspicion that

it kdvedinied marijuana and he saw him radio

for additional assistance. The Trooper had

him in custody and thus did not do his duty.

State v. Tellez, 6 Arizona App. 251,

431, P.2d 691, 25 ALR 3R 1063, sheds addi-

tional light as to why the Miranda warnings

are required before arrest. There it was

noted that formal arrest does not present

a clear point for determining when consti-

tutional rights ieee be given since too great

a temptation to postpone arrest until full

questioning had been completed would be pre-

sented to police. That Court found that

Miranda set this time at the point where the

police have a reasonable ground to believe

a crime has been committed and the defendant

was the one who committed it.

Clearly, the latest point at which

defendant can be said to fit the Tellez test

would be when Trooper Cope called for back-

up and then began conversing with the defen-

dant. }

Trooper Cope had suspected him of pos-

sessing marijuana from the time he looked

into his vehicle and saw the bag. The de-

fendant's statement at this point clearly

put his subsequent questions into the realm

of accusatory criminal police work and thus

any statements made in response thereto

should be barred.

Therefore, even if the defendant is not

found to be a suspect until he told Trooper

_ Cope that he had him, his answer to the

questions, "How many pounds?" should have

been suppressed along with any evidence

obtained as a result thereof as held in

Miranda v. Arizona, supra, at 479, and

State v. Corrigan, supra, at 192. United

States v. Blue, 384 U.S. 251, 255 86 S.Ct.

416, 16 L.Ed. 2d 510, laid out this rule more

prec‘sely, stating that any evidence obtained

by the State in violation of the defendant's

rights under the Constitution may be sup-

pressed along with the fruits of such evi-

dence- Because defendant would not have been

subject to arrest for a drug-related offense

or the possibility of a search of his vehicle

if he had not answered Trooper Cope's ques-

tion as to how much marijuana he had, all

marijuana subsequently seized should have

been suppressed at trial. His statements

led to his arrest, which led to the search

of the vehicle and later the trunk of the

vehicle. Had he known that he might not be

arrested if he said nothing, defendant ob-

viously would have remained silent.

¥ Sat we

pt i

DID THE CONNECTICUT SUPREME COURT ERR

IN CONCLUDING THAT THE ''NON-DRUG DEPENDENCY"

STATUS WAS NOT AN ELEMENT OF THIS. CRIME

DEFINED IN CONNECTICUT GENERAL STATUTES

§19-480a(b) THUS SHIFTING THE BURDEN OF

PROOF TO THE DEFENDANT ON THIS ELEMENT?

The Connecticut Supreme Court held that

drug dependency is an exception to Connecti-

cut General Statutes §19-480a(b) and thus

under Connecticut General Statutes §19-474,

the burden of producing evidence of drug-

dependency rests initially upon the defendant.

This decision is clearly in contradiction to

both the face of the statute and the holdings

of Mullaney v. Wilbur, 421 U.S. 684 (1975)

and Patterson v. New York, 432 U.S. 197,(1977).

The rule of law derived from Mullaney

and Patterson may be summarized as follows:

The burden of proving an affirmative defense

may constitutionally be placed on the defen-

dant but the prosecution must prove all

elements of a crime. To place the burden of

proof of an element of a crime on a defendant

by statute or judicial decree would subvert

the presumption of innocence and would amount

to a denial of the rights guaranteed by the

due process clause of the Fourteenth Amend-

ment. Whether a given factor is an element

of a crime or an affirmative defense is

determined by the statute itself. As this

Court stated in Patterson v. New York,

“the applicability of the reasonable

doubt standard, however, has always

been dependent upon how a State defines

the offense that is charged in any given

case.:.;"". 432. U.S. at 211, n. 12.

The “non-drug dependency" of a defendant

is obviously an element of the crime defined

in Connecticut General Statutes §19-480a(b).

Drug dependency is not specified as an

affirmative defense, as was extreme emotional

disturbance in the New York murder statute

interpreted in Patterson. Connecticut

General Statute §19-480a(b) contains other

mitigating factors which allow suspension

of the mandatory minimum sentence. These

factors are specifically set out as except-

ions. Thus, if the Connecticut Legislature

had so intended, it could have made drug

dependency an affirmative defense, simply

by stating so. However, the Connecticut

Supreme Court's judicial declaration of drug

dependency as an affirmative defense under

the statute as it is written is a denial of

due process under the Fourteenth Amendment ,

as held in Mullaney v. Wilbur.

The Connecticut General Statutes have

a section noted in the Appendix entitled,

Affirmative Defenses, which affirmative

defenses have to be proven by a defendant.

This procedure is constitutionally permissi-

ble since these affirmative defenses can be

treated as being outside of the actual facts

of the case itself. Thus, an affirmative

defense presumes the commission of the crime

and allows the defendant to prove it while

not forcing a defendant to waive his Fifth

Amendment rights since the affirmative de-

fense does not go to the actual elements of

the crime.

The imposition of the burden of proof

on the defendant of the drug’ dependency

element by the Connecticut Supreme Court

is also violative of the defendant's rights

under the Fifth Amendment. The defendant

would be forced to make incriminatory state-

ments as to his use and; possession of drugs.

Without a grant of immunity this is obviously

constitutionally impermissible by statute

or case law.

Finally, in this case, the trial of

fact was a jury of six persons. The trial

court's charge which appears in a footnote

within the Connecticut Supreme Court opinion,

begins by stating that this is an element of

the crime. At best, the charge is confusing

to a furor since if it is an affirmative

defense the charge is not clear. At Worst

it is legally erroneous since the court has

allowed the trier of fact to consider a

non-criminal factor at the same time it is

considering the guilt or innocence of the

rr eS

defendant on the evidence produced before

it.

CONCLUSION

Based upon the facts hereinabove set

forth and the issues raised in this Petition,

the Appellant/Petitioner, Jerome Januszewski,

prays for the issuance of a Writ of Certior-

ari from this Court to the Supreme Court of

the State of Connecticut.

PETITIONER

No.

Hu The

Supreme Court Of The Rnited States

OCTOBER TERM, 1980

JEROME JANUSZEWSKI, Petitioner

vs.

STATE OF CONNECTICUT, Respondent

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

RONALD E. CASSIDENTO, ESQ.

543 Prospect Avenue

West Hartford, CT 06105

(203) 233-5575

Attorney for Petitioner,

Jerome Januszewski

APPENDIX A

CONNECTICUT LAW JOURNAL

Vol. XLII No. 8

August 19, 1980

SUPREME COURT

April Term, 1980

Srate or Connecticut v. Janoun ‘Jaxvesawsxt

Corrza, C. J., Boopansxi, Perens, Heatry and PaRsxey, Js.

Argued April &—decision released August 19, 1980

Information charging the defendant with the

crimes of illegal possession of one kilogram or more

of a cannabis-type substance with intent to sell and

illegal possession of four ounces or more of a

cannabis-type substance, brought to the Superior

Court in the judicial district of New London and

tried to the court, Spallone, J.; judgment of guilty’

and appeal by the defendant. No error.

Ronald E. Cassidento, with whom, on the brief,

was Allen Marko, law student intern, for the appel-

‘Jant (defendant).

D. Michael Hurley, assistant state’s attorney, with

whom, on the brief, was C. Robert Satti, state’s

attorney, for the appellee (state).

Arrnuun H. Hearzy, J. The defendant has

appealed from his conviction of possession with the

intent to sell of one kilogram or more of a cannabis-

type substance in violation of General Statutes

§19-480a (b) and possession of four ounces or

more of a cannabis-type substance in violation of

§ 19-481 (b). On appeal, the defendant raises five

claims of error: Three are directed to the court’s

rulings on motions to suppress certain evidence;

one is directed to the court’s decision to quash the

defendant’s subpoena directed to the contents of

the arresting officer’s personnel file; and the last is

directed to the court’s instructions to the jury relat-

ing to the burden of proof. We discuss the facts of

the case as they relate to each of these claims.

Two of the motions to suppress challenged the

admissibility of a total of fifty-eight pounds of

marijuana taken from the vehicle that the defendant

was in control of at the time of his arrest on the

ground that the vehicle itself was unlawfully seized.

In a third motion to suppress the defendant claimed

that an inculpatory statement made by him con-

cededly before he was informed of his Miranda

rights was inadmissible because obtained in viola-

tion of the fifth amendment to the United States

constitution. The court’s memorandum of decision

on two of these motions, read in the light of other

undisputed facts,’ discloses the following: On

April 29, 1977, at approximately 3:30 p.m., Trooper

Michael Cope of the state police was traveling

southbound on route 12 in Preston when he noticed

a Cadillac parked next to a motorcycle in a com-

muter parking lot. Both vehicles were facing route

12. When the trooper noticed two people in the

front seat of the Cadillac, he decided to turn into

the parking lot. As he did so, he observed the

person, later identified as Bruce Kenyon, who was

seated in the passenger seat of the Cadillac, drop

down from the front seat and craw! out of the door

and under the motorcycle parked next to the auto-

mobile. Seeing this patently furtive conduct, the

trooper blocked the Cadillac by parking in front of

it and proceeded to investigate the matter. As he

* This court is hampered in its review of decisions of the trial

court that depend upon the resolution of factual matters where the

factual basis of the court’s decision does not appear in « transcript

Waa

hay

did so, the person seated in the driver’s seat locked

the passenger door of the vehicle, exited from the

driver’s door and then locked that door. Cope soon

recognized the person who had exited from the

driver’s seat as Jerome Januszewski, the defendant,

who the trooper knew had been previously arrested

and convicted of a drug-related offense. When

Cope asked the defendant and the person who was

with him what they were doing there, no explanation

was given and the defendant became hyperactive

and nervous. Cope then noticed a green garbage

bag on the floor of the front seat of the Cadillac, and

requested permission of the defendant to examine

the contents. When this permission was denied,

Cope returned to the police vehicle to check the

automobile registration and identification of the

defendant and the person with him, who, evidently,

was the operator of the motorcycle. While Cope

was in his vehicle he also called on his police radio

for his supervisor and Trooper John Herman, both

of whom were familiar with the defendant and his

drug-related activity. During the time that Cope

was in the police vehicle, the defendant and the per-

son with him wandered freely around the parking

lot until the iefendant approached the police vehicle

and asked Cope if they could speak together. Cope

testified at the suppression hearing that the defend-

ant then entered the police vehicle and stated:

“ ‘Look Mike, you got me, but let me go and I'll work

for you,’ or words to that effect. [State’s Attor-

ney}: Did you reply to that? [Trooper Cope]: Yes,

sir. I stated, ‘How much grass?’ That was it.

Meaning, how much grass was in the bag, or in the

car, or in the garbage bag. [State’s Attorney]: Did

he answer that question? [Trooper Cope]: Y

sir. He stated, ‘Ten big ones.’ [State’s Attorney]:

What does that mean, or what do you understand

that to mean through previous experience, training

on the streets, ‘ten big ones’? [Trooper Cope]: Ten

pounds.”

Shortly after this exchange, the substance of

which the defendant does not dispute, Sergeant

Stuyniski arrived on the scene and the defendant

was arrested. When the officers requested the keys

to the Cadillac from the defendant, he responded by

saying that he did not have them. When Stuyniski

indicated that if the defendant did not surrender

the keys the automobile might be damaged as a

result of the police gaining entry forcibly, the

defendant gave the officer the keys. The officers

then entered the vehicle and removed from the front

seat the green trash bag, in which they discovered

ten individual ziplock plastic bags containing a sub-

stance later identified as marijuana. Contrary to

the statement in the defendant’s brief, the police

did not search the trunk of the Cadillac at this time.

Instead, the officers transported the Cadillac to the

state police barracks and obtained a search warrant

to search the trunk. On doing so, the officers dis-

covered forty-eight ziplock plastic bags, each of

which contained one pound of a substance later

identified as marijuana.

We turn first to the defendant’s claim that his

automobile was seized in violation of the fourth

amendment to the United States constitution. In

this portion of the defendant’s argument he claims

that Cope’s action in blocking the Cadillac upon his

entrance into the parking lot constituted a seizure

of the automobile and that this seizure was unrea-

sonable under the ‘fourth amendment.

There is no question but that, on the facts of this

case, Cope temporarily detained the Cadillac that

was under the defendant’s control and, at least con-

structively, the defendant himself by his conduct

in blocking the automobile. This initial detention

was for investigatory purposes and did not consti-

tute an actual arrest of the person or complete

' seizure of the automobile. It was a sufficient

restraint on the liberty of the defendant, however,

to implicate the defendant’s right under the fourth

amendment to the United States constitution to be

secure in his person and effects against “unreason-

able searches and seizures.” U.S. Const., amend.

IV; Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct.

1391, 59 L. Ed. 2d 660 (1979); United States v.

Martinee-Fuerte, 428 U.S. 543, 556-58, 96 8. Ct.

3074, 49 L. Ed. 2d 1116 (1976); United States v.

Brignont-Ponce, 422 U.S. 873, 878, 95 8. Ct. 2574,

45 L. Ed. 2d 607 (1975); Terry v. Ohio, 392 U.S. 1,

16, 88 8. Ct. 1868, 20 L. Ed. 2d 889 (1968). In Davis

v. Mississippi, 394 U.S. 721, 726-27, 89 S. Ct. 1394,

22 L. Ed. 2d 676 (1969), the United States Supreme

Court stated: “Nothing is more clear than that the

Fourth Amendment was meant to prevent whole-

sale intrusions upon the personal security of our

citizenry, whether these intrusions be termed

‘arrests’ or ‘investigatory detentions.’ ”

That does not mean, of course, that the police

can never detain a person or his property without

probable cause to arrest or to seize.* The Supreme

Court expressly rejected that contention in Terry

v. Ohio, supra, 20-22; see 3 LaFave, Search and

Seizure: A Treatise on the Fourth Amendment

$9.1 (d) ; and specifically with respect to investiga-

tive stops of automobiles, in Adams v. Williams,

407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d

612 (1972), and United States v. Brignoni-Ponce,

supra, "880. The fourth amendment was never

intended to shackle the police by preventing their

use of reasonable efforts to both detect and pre-

vent crime. The fourth amendment prohibition is

against “wereasonable searches and seizures.”

(Emphasis added.) The question presented, then, is

*It is clear thet police action that is necessarily swift because it

predicated upon the on-the-spot observations of the police his-

torieally has not on tens and as a practical matter could not be, sub-

ject to the fourth amendment’s warrant requirement. Terry v. Ohio,

892 U.S. 1, 20, 68 8. Ct. 1868, 80 L. Ed. 84 889 (1968).

whether under all the circumstances Cope’s conduct

in detaining. the defendant and the vehicle, the

defendant was operating was reasonable under the

fourth amendment. Delaware v. em supra,

653-54; Terry v. Ohio, supra, 20.

There is no ready test for determining reason-

ableness other than by balancing the need to search

or seize against the } invasion which the search or

seizure entails. Camara v. Municipal Court, 387

U.S. 523, 536-37, 87 S. Ct. 1727, 18 L. Ed. 2d 930

(1967). The test to be applied, however, is an

objective one: “would the facts available to the

officer at the moment of the seizure or the search

‘warrant a man of reasonable caution in the belief’

that the action taken was appropriate?” Terry v.

Ohio, supra, 22. In justifying the particular intru-

sion “the police officér must be able to point to

specific and articulable facts which, taken together

with rational inferences from those facts, reason-

ably warrant that intrusion.” Terry v. Ohio, supra,

21; see United States v. Brignoni-Ponce, supra, 884;

State v. Watson, 165 Conn. 577, 585, 345 A.2d 582

(1973). While general investigation may be based

upon suspicion and guesswork, a police officer’s deci-

sion to restrain a person’s liberty or the use of his

property must be made on more than a mere hunch.

See Delaware v. Prouse, 440 U.S. 648, 99 8. Ct.

1391, 59 L. Ed. 2d 660 (1979) ; Terry v. Ohio, supra,

22; Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L.

Ed. 2d 142 (1964) ; State v. Watson, supra, 585. The

ific facts that form the basis of the stop also

limit the scope of the officer’s actions following the

stop. United States v. Brignoni-Ponce, supra, 881;

Terry v. Ohio, supra,-19-20. “The results of the

initial stop may arouse further suspicion or may

dispel the questions in the officer’s mind. If the

latter is the case, the stop may go no further and

the detained individual must be free to go. If, on

the contrary, the officer’s suspicions are confirmed

Mud

or are further aroused, the stop may be prolonged

and the scope enlarged as required by the circum-

stances.” State v. Watson, supra, 585.

We apply these considerations to the present case.

The trooper’s observation of two persons in the

front seat of an automobile parked in a commuter

parking lot at a time when the owners of such vehi-

cles are customarily at work was sufficient to arouse

some degree of reasonable suspicion. The plainly

furtive conduct of the occupants of that vehicle

observed by the officer as he approached certainly

justified the limited intrusion upon the defendant’s

personal liberty and his liberty to move the auto-

mobile. These were “specific and articulable facts

which, taken together with rational inferences from

those facts, reasonably warrant [the] intrusion.”*

Terry v. Ohio, supra, 21. When the defendant

exited and locked the vehicle and was recognized by

the officer as someone who had previously been

arrested and convicted of a drug offense, the officer

was warranted in questioning him about his activi-

ties. Upon receiving an unsatisfactory answer and

observing the green plastic garbage bag that the

defendant had locked inside the vehicle, the officer

was also warranted in restraining the Cadillac while

investigating further and seeking back-up assist-

ance. It should be pointed out that the actual

‘restraint on the defendant’s liberty was minimal.

He was allowed to wander freely about the parking

lot with Kenyon as the trooper remained in his

patrol car. The trooper’s conduct in blocking the

Cadillac served only to maintain the status quo

momentarily while he obtained more information

and assistance. See Adams v. Williams, 407 U.S.

1438, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).*

The restriction upon the defendant’s liberty was by

no means unreasonable or excessive in view of the

surrounding circumstances.’ The court did not err

in not excluding evidence of the marijuana seized

from the Cadillac on this ground.°

The defendant next claims that the search of the

riding compartment of the Cadillac shortly after his

arrest violated the fourth amendment and that the

court erred in denying his motion to suppress the

evidence obtained as a result of that search. He

reasons that because there was no actual threat that

the automobile could be moved there were no exi-

gent circumstances permitting an exception to the

fourth amendment warrant requirement and that,

as a consequence, the police were obliged to seize

the automobile until such time as they could procure

a warrant to search it.

*The propriety of such stops is recognized by the Model Code of

Pre-Arraignment Procedure § 110.2 (1) (a).

*Compare the facts of this case with those of United States v.

Strickler, 490 F.2d 378 (9th Cir. 1974). In Strickler, the police,

after observing a car drop off a person at a location where a nar-

cotics delivery was expected to take place, converged upon the sus-

pect car with three squad cars: one at the front, one at the rear

and one at the side of the suspect’s car so as to prevent any move-

ment. The police then exited from their cars and, at gunpoint,

ordered the occupants of the suspect car to raise their hands. The

court ruled that this restriction of the occupants’ liberty constituted

an arrest and not the limited intrusion of a “stop and frisk.” It

It is a basic principle of constitutional law that

“searches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment

—subject only to a few specifically established and

well-delineated exceptions.” (Emphasis added.)

Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.

507, 19 L. Ed. 2d 576 (1967); see Coolidge v. New

Hampshire, 403 U.S. 443, 455-56, 91 S. Ct. 2022,

29 L. Ed. 2d 564 (1971). The fourth amendment’s

requirement that a warrant issue from a neutral

and detached judicial officer “rests upon the desir-

ability of having magistrates rather than police offi-

cers determine when searches and seizures are per-

missible and what limitations should be placed upon

such activities.” Trupiano v. United States, 334

U.S. 699, 705, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948).

As we have already observed, however, the fourth

amendment proscribes only “unreasonable searches

and seizures,” and there will be occasions when,

given probable cause to search, resort to the judi-

cial process will not be required of law enforcement

officers. Thus, where exigent circumstances exist

that make the proctrement of a search warrant

unreasonable in light of the dangers. involved; see

Chimel v. California, 395 U.S. 752, 89 8. Ct. 20384,

23 L. Ed. 2d 685 (1969) (harm to police officer) ;

Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642,

18 L. Ed. 2d 782 (1967) (hot pursuit of escaped sus-

pect) ; or the likelihood of evidence being destroyed

or removed from the grasp of law enforcement offi-

cers; see Schmerber v. California, 384 U.8. 757,

770-73, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); a

warrant will not be required.

In Carroll v. United States, 267 U.S. 132, 45 8. Ct.

280, 69 L. Ed. 543 (1925), the Supreme Court, for

the first time, applied the exigency doctrine to auto-

mobile searches based on probable cause but con-

ducted without a warrant. In sustaining the con-

stitutionality of the National Prohibition Act; 41

Stat. 305, 315 (1919); which authorized such

searches, the court stated that it would not be “prac-

ticable to secure a warrant because the vehicle

[could] be quickly moved out of the locality or juris-

diction in which the warrant must be sought.” Car-

roll v. United States, supra, 153.’ After its decision

in Carroll, the court had occasion to clarify and

refine the exigency doctrine as it applies to searches

of automobiles. In Chambers v. Maroney, 399 U.S.

42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the court

sustained the constitutionality of a warrantless

search of an automobile at the police station on the

ground that the exigency that existed earlier at the

time of seizure justified the later intrusion. In

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.

2022, 29 L. Ed. 2d 564 (1971), a sharply divided

court declared that the warrantless search of an

arrested defendant’s automobile, which was parked

in a private driveway, violated the fourth amend-

ment where the police had ample opportunity to

obtain a valid warrant. The court pointed out that

the vehicle contained no contraband or stolen goods

but was being seized for investigative purposes; nor

was there any indication that any confederates of

the defendant had been alerted so as to create the

threat of the automobile’s removal. Id., 472.

Although the court’s opinion in Coolidge suggested

the adoption of an exigency exception to the war-

rant requirement based upon the actual or threat-

ened mobility of the motor vehicle, the court’s later

"Since the court’s decision in Carroll v. United States, 267 U.S.

138, 45 S, Ct. 280, 69 L. Ed. 543 (1925), it has considered reasonable

the warrantless searches of automobiles abseeut exigent circumstances

where (1) the search was incident to a valid arrest; Adome v.

Williams, 407 U.S. 143, 98 8. Ct. 1921, 82 L. Ed. 2d 618 (1978);

Preston v. United States, 376 U.S. 364, 367, 84 8. Ct. 881, 11 L.

Ed. 24 777 (1964) (dicta); (2) ;

the

Lewis v. United States, 385 U.S. 206, 210, 87 8. Ct. 4284, 17 L. Ed.

2d 312 (1966); (3) the search was conducted to con-

decisions on the subject have dispelled that sug-

gestion. In Cardwell v. Lewis, 417 U.S. 583, 94 8. Ct.

2464, 41 L. Ed. 2d 325 (1974), the court acknowl-

edged the constitutional authority of the police,

given probable cause to seize an automobile parked

in a public parking lot and to later “search’’® the

vehicle at the station house without a warrant.

Althongh probable cause may have existed for

enough time prior to Lewis’ arrest for the police to

obtain a warrant, the court did not regard this fact

as dispositive of the issue. The court stated: “Exi-

gent circumstances with regard to vehicles are not

limited to situations where probable cause is unfore-

seeable and arises only at the time of arrest... .

The exigency may arise at any time, and the fact

that the police might have obtained a warrant ear-

lier does not negate the possibility of a current situ-

ation’s necessitating prompt police action.” Id.,

595-96. The court also noted that its decision was

based upon the fact that “[o]ne has a lesser expecta-

tion of privacy in a motor vehicle because its func-

tion is transportation and it seldom serves as one’s

residence or as the repository of personal effects.”

Id., 590.

More recently, the court has identified more

clearly two reasons for the distinction between

searches of motor vehicles and searches of build-

ings or other repositories of personal effects.

“First, the inherent mobility of automobiles creates

circumstances of such exigency that, as a practical

necessity, rigorous enforcement of the warrant

requirement is impossible. Carroll v. United States,

[supra, 153-54]; Coolidge v. New Hampshire,

{supra, 459-60]. But the Court has also upheld

warrantless searches where no immediate danger

* Actually, the interior of the automobile in Cardwell was never

searched; the search was limited to an examination of a tire on one

of the wheels and the taking of paint scrapings from the exterior.

Cardwell v. Lewis, 417 U.S. 583, 502, 94 8. Ct. 2464, 41 L. Ea. 84

885 (1974).

11A °

was presented that the car would be removed from

the jurisdiction. Chambers v. Maroney, [supra,

51-52]; Cooper v. California, 386 U.S. 58 [, 87 S.

Ct. 788, 17 L. Ed. 2d 730] (1967). Besides the ele-

ment of mobility, less rigorous warrant require-

ments govern because the expectation of privacy

with respect to one’s automobile is significantly less

than that relating to one’s home or office.” (Empha-

sis added.) South Dakota v. Opperman, 428 U.S.

364, 367, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) ;°

see also United States v. Alden, 576 F.2d 772 (8th

Cir. 1978); Commonwealth v. Holzer, 480 Pa. 93,

389 A.2d 101 (1978) ; note, 87 Harv. L. Rev. 835.

These decisions make clear that the actual or

threatened mobility of an automobile is not disposi-

tive of whether the fourth amendment requires the

police to obtain a warrant prior to conducting a

search of the automobile. It is because an automo- —

bile is, usually, inherently mobile and, thus, presents

a continuing possibility of being moved and because

a person’s expectation of privacy in an automobile

is significantly less than one’s expectation of

privacy in an automobile is significantly less than

one’s expectation of privacy in his home, office or

other similar places, that resort to the judicial

process prior to the search of an automobile is often

not required.

- Whatever may be the circumstances in which a

search warrant would be required before the search

of an automobile, they certainly are not presented

here. The defendant does not dispute that there

was probable cause to search the contents of the

Cadillac. Not only was the Cadillac inherently

mobile, that is, capable of self-propulsien, but it

*In South Dakota v. Opperman, 428 U.S. 364, 96 B. Ct. 3008, 49

L. Ed. 24 1000 (1976), the Supreme Court approved the constitu-

tional validity of a standard inventory search of an automobile that

was towed to a police impound lot after being illegally parked in a

restricted parking sone. |

12A

was parked on easily accessible property open to

the public. See Cardwell v. Lewis, supra, 593; com-

pare Coolidge v. New Hampshire, supra. Moreover,

the Cadillac, which was neither owned by, nor regis-

tered in the name of, the defendant, could have been

moved by its owner or a confederate of the defend-

ant and its contents forever lost had the police not

at a minimum seized it at the time of the defend-

ant’s arrest. Where the police have a right at least

to immobilize the vehicle, the Supreme Court has

elated, Sak Aenean 0. een eee

practical consequences between an immediate

without a warrant and the car’s immobilization

until a warrant is obtained.” Chambers v. Maroney,

399 U.S. 42, 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419

(1970), quoted in Cardwell v. Lewis, supra, 594.”

We conclude that the seizure and search of the

defendant’s vehicle at the commuter parking lot did

not violate the fourth amendment to the United

States constitution and that the court did not err

at aT

4 Fae att

begat Eyl

Git Het

tsi it

tebe teet

TH: teed

in refusing to suppress evidence obtained in the

course of that search.”

The defendant also claims that the court erred

in refusing to suppress the inculpatory statements

made by him to Cope after the defendant entered

the police vehicle. The defendant argues that the

conversation between himself and Cope constituted

“custodial interrogation” and that Cope’s failure to

advise him of his rights uncer Miranda v. Arizona,

384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966), prior to the conversation required the sup-

pression of the inculpatory statements. We dis-

Before one suspected in the commission of a

crime is entitled to the warnings constitutionally

required by Miranda two conditions must be satis-

fied: the suspect must be in police custody; Oregon

v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50

L. Ed, 2d 714 (1977); Beckwith v. United States,

425 U.S. 341, 344-48, 96 S. Ct. 1612, 48 L. Ed. 2d 1

(1976) ; see State v. Singleton, 174 Conn. 112, 115,

384 A.2d 334 (1977); and the suspect must be sub-

jected to interrogation. Rhode Island v. Innis,

US. [27 Cr. L. Rptr. 3093, 3096 (May 12,

1980)]; Miranda v. Arizona, supra, 444; State v.

Ferrara, 176 Conn. 508, 519, 408 A.2d 265 (1979).

The term “custodial interrogation” encompasses

the front seat without a warrant violated the fourth amendment

under the Supreme Court’s holdings in United States v. Chadwick,

433 U.S. 1, 97 8. Ct, 2476, 58 L. Ed. 84 588 (1977) and Arkonsas

v. Sanders, 442 U.S. 753, 09 8. Ct. 2586, 61 L. Ed. 24 285 (1979),

is unavailing. There is no indication that the defendant exhibited

® greater expectation of privacy in the green garbage bag than he

did in the interio® of the automobile generally. Unlike the locked

footlocker found in the trunk of Chadwick's automobile and the

closed suitease found in the trunk of the taxicab Sanders was riding

im, the green garbage bag here was apparently not ever tied closed.

14A

both of these requirements, and. was defined by ‘the

Miranda court as “questioning initiated by law

enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom

of action in any significant way.” Id., 444. What

constitutes police custody for purposes of the

Miranda warnings is not always self-evident. One

thing is clear: the Miranda court was concerned

with interrogation that takes place in a police dom-

inated environment containing “inherently com-

pelling pressures which work to undermine the

individual’s will to resist.and to compel him to-speak

where he would not otherwise do so freely.”

Miranda v. Arizona, supra, 467; see. also id., 445,

458; Beckwith v. United States, supra, 346-47. The

Miranda court concluded that “{iJn each of the

cases [joined in the appeal], the defendant was

thrust into an unfamiliar atmosphere and run

through menacing police interrogation procedures.”

Id., 457. Although the location of the particular

interrogation is not controlling and one may be in.

custody in his own home; see Orozco v. Texas, 394

U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969);

the Supreme Court has unequivocally stated that

the fact that police questioning takes place in a

“coercive environment” is not enough to trigger the

application of Miranda. “Any interview of one sus-

pected of a crime by a police officer will have coer-

cive aspects to it, simply by virtue of the fact that

the police officer is part of a law enforcement system

-*%

of warnings to be imposed simply because the ques-

tioning takes place in the station house, or because

the questioned person is one whom the police sus-

pect. Miranda warnings are required only where

there has been such a restriction on a person’s free-

dom as to render him ‘in custody.’ It was that sort

of coercive environment to which Miranda by its

terms was made applicable, and to which it is lim-

ited.” Oregon v. Mathiason, supra, 495.

We do not believe that the facts establish that the

defendant was in custody when he entered the police

cruiser and began to converse with Cope. Although

it is true that the defendant was the subject of what

would have been, absent his inculpatory statements,

a temporary investigative stop and was, thus,

detained, such temporary and limited restraint on

an individual’s liberty can hardly rise to the level

of “custody” under Miranda in the circumstances

presented here. Were such routine investigatory

stops deemed to place the person detained and ques-

tioned in custody, then police officers would be

required to inform motorists stopped for minor

traffic violations of their Miranda rights prior to

asking any questions simply because during the

period the officer is checking out the driver’s license

and the automobile’s registration, the driver may

not be permitted to leave the scene. In State v.

Smith, 174 Conn. 118, 384 A.2d 347 (1977), we

upheld the constitutionality of police questioning

of the defendant during the time immediately fol-

lowing a fatal automobile accident out of which his

arrest for misconduct with a motor vehicle later

arose. Although the defendant’s liberty was some-

what restrained during he investigatory operations

of the police at the scene, and it became evident to

the police. officer that the defendant was probably

intoxicated and, therefore, criminally responsible

for the homicide, we concluded that the questions

put to the defendant that elicited his incriminating

responses~did not constitute “custodial interroga-

16A

tion.” Id., 121.

vi ee =

That is not so say that the absence of a formal

arrest precludes the existence of custody for

Miranda purposes. “Precisely when an arrest

occurs is a question of fact which depends on an

evaluation of all the surrounding circumstances.

Sibron v. New York, 392 U.S. 40, 67, 88 S. Ct. 1889,

20 L. Ed. 2d 917 [1968]; Rios v. United States, 364

U.S. 253, 261-62, 80 S. Ct. 1431, 4 L. Ed. 2d 1688

[1960].” State v. Love, 169 Conn. 596, 600, 363 A.2d

1035 (1975). The presence or absence of a formal

declaration that the suspect is under arrest is not

dispositive of the question. See Dunaway v. New

York, 442 U.S. 200, 212, 99 S. Ct. 2248, 60 L. Ed. 2d

824 (1979); State v. Derrico, Conn. (41 Conn.

L.J., No. 50, pp. 7, 10) (1980). “To constitute an

arrest, there must be an actual or constructive seiz-

ure or detention of the person, performed with the

intention to effect an arrest and so understood by

the person detained.” United States v. Grandi, 424

F.2d 399, 401 (2d Cir. 1970), quoting Jenkins v.

United States, 161 F.2d 99, 101 (10th Cir. 1947).

An application of these considerations to this case

makes it apparent that the defendant had neither

been actually nor constructively arrested at the time

he entered the police cruiser. Indeed, Cope did not

have probable cause to arrest the defendant until

the defendant inculpated himself in the police

cruiser. Up until that time, the defendant was

then initiated the conversation that followed, it

could hardly be said that he had been subjected to

not otherwise do so freely.” Miranda v. Arizona,

supra, 467. In fact, the statement made by the

17A

defendant in which he implicitly acknowledged guilt

of a possessory drug offense was entirely volun-

teered. Such statements ‘cannot be considered the

product of ‘custodial interrogation’ requiring

Miranda warnings.” Annot., 31 A.L.R.3d 565, 581;

see United States v. Sanchez, 449 F.2d 204, 209 (5th

Cir. 1971) ; State v. Ferrara, 176 Conn. 508, 521, 408

A.2d 265 (1979). The question asked by the officer

relating to the amount of marijuana the defendant

had acknowledged he then possessed only served: to

make more specific the defendant’s voluntary and

somewhat ambibuous statement.

We conclude that the defendant was not in cus-

tody at the time he made inculpatory statements to

“Cope and, therefore, that Miranda was not applica-

ble.* Where the defendant is not entitled to

Miranda warnings but nonetheless makes inculpa-

tory statements to the police that are sought to be

introduced at his trial, the question becomes

whether, in the light of all the circumstances, the

inculpatory statements were voluntarily made. See

Beckwith v. United States, supra, 347-48. All of

the surrounding circumstances, including the dura-

tion and conditions of the detention, the attitude of

the police, and all the factors affecting the defend-

ant’s power of self-control are pertinent to whether

his statements were the result of a free and uncon-

strained choice, in other words, were truly volun-

tary. Culombe v. Connecticut, 367 U.S. 568, 602, 81

S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Our review

of this case in the light of these factors leads us to

but one conclusion: the trial court’s implicit deter-

mination that the defendant’s statements were

voluntarily made and were not the product of

another’s will was not erroneous.

™ Because we have concluded that the defendant was not in cus-

We turn now to the defendant’s claim that. the

court erred in its instructions to the jury on the

issue of drug dependency. The defendant claims

that, under General Statutes § 19-480a (b),** the fact

that the accused was not drug dependent at the time

of the alleged offense is an essential element of the

offense, and that the state bears the burden of prov-

ing this element beyond a reasonable doubt. The

state counters by asserting that the accused’s status

as a drug-dependent person at the time of the

offense is an exception from the statute’s prohibi-

tion and that, by operation of General Statutes

§ 19-474,” the initial burden of producing evidence

'™“ Although the defendant frames this issue as the court’s failure

to. charge the jury as requested by him on the matter of drug

dependency, he hes failed to include in his brief the language of

the requested instruction as our rules require. Practice Book, 1978,

$ 3060F (c) (1), Because the claim is fully briefed by the parties,

the error claimed is of fundamental constitutional dimensions—

it does.to the burden of proof of an alleged essential

“General Statutes § 19-474 provides: “In any complaint, informa-

tion or indictment, and in any action or proceeding brought for the

at trial of drug dependency rested upon the defend-

ant. The trial court concluded that under $ 19-480a

(b) drug dependency was an exception to or an

exemption from the general prohibition in that stat-

ute and that General Statutes § 19-474 had the effect

of placing the burden on the defendant to produce

some evidence that he was a drug-dependent person

at the time of the alleged offense. The court was

careful in the instructions given to comply with this

court’s interpretation of § 19-474 in State v. Brown,

163 Conn. 52, 301 A.2d 547 (1972). In Brown we

16 Continued

enforcement of any provision of this part, it shall not be necessary

to negative any exception, excuse, proviso or exemption contained

in said section, and the barden of proof of any such exception,

excuse, proviso or exemption shall be upon the defendant.”

"The court’s instruction in this regard provided: “[T]he state

action or proceeding brought for the enforcement of any provision

Daal

said that, while the defendant bears the initial bur-

den of producing “substantial evidence” of the

applicability of an exception, upon doing so the

language of General Statutes $19-474 loses all

operative effect and the burden then devolves upon

the state to prove the nonapplicability of the excep-

tion, as with all other essential elements in the case,

beyond a reasonable doubt. Id., 66-67.

The question dispositive of this issue is whether

the fact that the defendant is not drug dependent

at the time of the offense is an essential element of

the crime charged upon which the state bears the

initial and ultimate burden of proof. This question

is one of first impression. Whether the existance

of some fact is an essential element of a crime

depends upon whether the existence of that fact

forms a part of the conduct prohibited by the stat-

ute; that is, whether the fact in question is part of

the corpus delicti. See State v. Beauton, 170 Conn.

234, 241, 365 A.2d 1105 (1976). General Statutes

§ 19-480a (b) provides in pertinent part: “Any per-

son who ... possesses with the intent to sell .

one kilogram or more of a cannabis-type substance

except as authorized in this chapter, and who is not

at the time of such action a drug-dependent person,

for a first offense shall be imprisoned not less than

five years nor more than twenty years... .” We

conclude that the defendant’s status as a person

who is not drug-dependent is not an essential ele-

ment of the offense charged. It is not a part of the

prohibited conduct, i.e., the possession of a certain

quantity of a narcotic substance with intent to sell.

Unlike the situation presented in State v. Beauton,

170 Conn. 234, 242, 365 A.2d 1105 (1976), there is

is permitted only in carefully delineated circum-

stances."* See generally General Statutes, c. 359.

General Statutes § 19-474 places the burden of

proving the existence of any “exception, excuse,

proviso or exemption” contained in the provisions

of chapter 359 upon the defendant. It is clear from

a reading of General Statutes §19-480a (b) that

persons who are at the time of the offense drug

dependent are exempted from the operation of the

statute. Thus, examination of the language of both

General Statutes §§ 19-474 and 19-480a (b) leads

to the conclusion that the burden of producing evi-

dence of drug dependency rests initially upon the

defendant. It was just such an exemption from the

operation of the prohibiting statute to which

§ 19-474 was designed to apply.

The defendant claims, however, that because the

clause relating to the absence of drug dependency

does not begin with the word “provided” or

“except,” or some similar expression, the burden is

upon the state to prove the nonexistence of this

status. General Statutes § 19-474 creates no such

requirement, and it would raise form over sub-

stance to impose one. The clear meaning of the

clause relating to the absence of drug dependency is

to exempt a particular class of persons from the

operation of the statute.”

Not only does the language of § 19-474 place the

burden of producing some substantial evidence of

prohibition against carrying or possessing = pistol.” State v. Beaw-

ton, 170 Conn. 234, 248, 365 A.2d 1105 (1976).

drug dependency upon the defendant, logic does as

well. It is generally recognized that the state bears

no initial burden of proof on matters personal to the

defendant and peculiarly within his own knowledge.

See 153 A.L.R. 1218, 1251-54; 29 Am. Jur. 2d, Evi-

dence $§ 153, 154. A defendant’s drug dependency

at the specific point of time in the past at which the

offense occurred is certainly a matter personal to

the defendant and peculiarly within his own knowl-

edge. Moreover, the enactment of § 19-474 appears

to be an implicit recognition by the legislature of the

difficulty created when any party is given the bur-

den of proving the nonexistence of a certain fact,

especially where, as in this case, that fact is the

nonexistence of a physical status of the defendant

at one, usually distant, point prior in time.” See

29 Am. Jur. 2d, Evidence § 1538. |

Placing upon the defendant the burden of prov-

ing the existence of a physical state of being that

removes him from the operation of a penal statute

is not unusual in this jurisdiction or in others.

Under General Statutes § 53a-13, a defendant in any

criminal prosecution is required to assume the bur-

den of proving that, as a result of a mental disease

or defect, he lacked the requisite mental capacity

to commit the offense, or simply stated, that he was

insane. Like our construction of General Statutes

§ 19-474, we have said concerning General Statutes

§ 53a-13 that “[t)he state has the right, in the first

instance, to rely on the presumption that the defend-

~ ant was sane at the time of the offenses alleged in

the ... [information] ... .” and that the defend-

ant bears the burden of producing substantial evi-

dence tending to prove insanity. State v. Rossier,

175 Conn. 204, 209, 397 A.2d 110 (1978), quoting

State v. Davis, 158 Conn. 341, 355, 260 A.2d 587

(1969). When the defendant produces such evi-

dence, the presumption of sanity loses all operative

effect and the state bears the burden of proving

beyond a reasonable doubt that the defendant was

sane at the time of the alleged offense. Ibid. Like-

wise, in any prosecution for murder, the burden of

proving that the defendant acted under the influence

of extreme emotional disturbance for which there

was a reasonable explanation or excuse rests upon

the defendant. General Statutes § 53a-54a (a). The

constitutionality of allocating to the defendant the

burden of proof on this mitigating factor is with-

out doubt after the Supreme Court’s decision in

Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319,

53 L. Ed. 2d 281 (1977). Similarly, this court has

already held and has later reiterated that the allo-

cation of the burden of proof made by General Stat-

utes § 19-474 does not violate the due process clause

of the United States constitution.” See State v.

Clark, 164 Conn. 224, 229, 319 A.2d 398 (1973);

State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972).

We hold that under General Statutes § 19-480a (b)

the state has the right in the first instance to rely

on the language of § 19-474 that “it shall not be

necessary to negative any exception, excuse, pro-

viso or exemption contained in” the section, such

as the defendant’s status as a drug-dependent per-

son at the time of the offense. Should the defendant

thereafter introduce some substantial evidence

tending to prove his drug dependency at the time

of the offense, the matter of his drug dependency

becomes an issue in the case, § 19-474 then loses

all operative effect and “the burden rests on the

"In State v. Brown, 163 Conn. 52, 67, 301 A.2d 547 (1972), we

said: “Of course, the provisions of § 19-474 would not be constitu-

state, as it does in all other essential elements in

the case, to prove beyond a reasonable doubt that

the accused was not entitled to the benefit of [the]

excuse, proviso or exemption claimed by him.”

State v. Brown, supra, 67." We conclude that the

court did not err in the instruction given.

We take up now the defendant’s claim that the

court erred in quashing the subpoena issued by the

defendant for the personnel records of Cope. The

subpoena was issued to the Connecticut state police

personnel department and was properly served and

returned. In his brief, the defendant states that

the purpose of the subpoena was to allow him to

inspect Cope’s personnel file in order to verify

knowledge, based on information and belief, that

Cope had been the subject of various disciplinary

actions prior to the incident giving rise to this pros-

ecution.. The state moved to quash the subpoena

because under Public Acts 1977, No. 77-609, now

codified as General Statutes 4 1-15 et seq. and known

as the Freedom of Information Act, personnel files

are exempt from disclosure as public records. See

General Statutes § 1-19 (b) (2). The defendant sug-

gested at the trial that the court make an inspection

of the file in camera but the court refused to do so.

In refusing to allow the defendant to gain access

to Cope’s personnel file, the court relied on the con-

are technically incorrect. It would be more accurate to say that,

like the issue of insanity, upon the defendant’s introduction of some

substantial evidence tending to prove his drug dependency at the

time of the offense, the matter of the defendant’s status as a person

who is not drug dependent becomes an issue in the case upon which

the state beers the ultimate burden of proof. In view of the prac-

tieal equivalence of the instruction given and the fact that the

credibility. The court also intimated that such a

file would not be admissible to impeach the witness

if he denied any prior acts of misconduct that might ,

be recorded therein because it would involve a col- :

lateral matter.

The general rule under the Freedom of Informa-

tion Act favors disclosure and exceptions to that

rule will be narrowly construed in the light of the

underlying purpose of the act.* See Wilson v.

Freedom of Information Opmmission, Conn.

(42 Conn. L.J., No. 1, pp. 11, 12) (1980). We are

not here presented with the question of the general

publie’s right to certain information, however,

which is the subject of the Freedom of Information

Act. Through the Freedom of Information Act, the

legislature has sought to balance the public’s right

to know and the private needs for confidentiality.

See Wilson v. Freedom of Information Commis-

sion, supra, 12 n.2. Instead, the defendant’s request

in this case implicates a more significant right, the

right of a criminal defendant to impeach the wit-

nesses who testify against him. See State v. Rod-

. rigues, Conn. (41 Conn. L.J., No. 44, pp. 12,

15-16) (1980); State v. Mahucod, 158 Conn. 536,

540, 265 A.2d 83 (1969). It is this right of a particu-

lar defendant that must be weighed in the balance

that determines whether information, otherwise

exempt under the act, must nevertheless be dis-

closed.

The competing interests here are both weighty

and legitimate. There are strong policy reasons for

maintaining the confidentiality of personnel files of

the type involved in this case. See, og., People

v. Coleman, 75 Misc. 2d 1090, 349 N.Y.S.2d 298

(1973). Generally, a trial court has some discretion

in the matter of discovery where material is sought

™ We believe this rule applies by analogy here even though tech-

nically a public agency is not the one resisting disclosure of informa-

tion under the Freedom of Information Act.

26A

oy ¢

for impeachment purposes. See Shores v. United

States, 174 F.2d 838 (8th Cir. 1949); 11 A.L.B.2d

635. Other jurisdictions have recognized that in the

exercise of that discretion the trial court must weigh

the defendant’s need to examine confidential matter

for the purpose of discovering impeaching material

against the public policy in favor of the confiden-

tiality of private and personal information. See

United States v. Iocia, 13 F.R.D. 335 (S8.D. N.Y.

1952); Commonwealth v. Dominico, 1 Mass. App.

Ct. 693, 306 N.E.2d 835 (1974) ; People v. Coleman,

supra. We subscribe to this approach.

_ The disclosure of such information must be care-

fully tailored to a legitimate and demonstrated need

for such information in any given case. Where dis-

closure of the personnel file would place in the

hands of a defendant irrelevant or personal and

sensitive information concerning the witness, the

entire file should not be disclosed. No criminal

defendant has the right to conduct a general “fishing

expedition” into the personnel records of a police

officer. Any request for information that does not

directly relate to legitimate issues that may arise

in the course of the criminal prosecution ought to

be denied. In recognizing the danger of permitting

the disclosure’ of personnel records of any witness

or litigant, one court has said: “It has been widely

noted that such records often contain raw data,

uncorroborated complaints, and other information

which may or may not be true but may be embar-

rassing, although entirely irrelevant to any issue

in the case, even as to credibility.” People v. Sump-

ter, 75 Misc. 2d 55, 60, 347 N.Y.S.2d 670 (1973).

Because discovery of matters contained in a police

officer’s personnel file involves careful discrimina-

tion between material that relates to the issues

involved and that which is irrelevant to those issues,

the judicial authority should exercise its discretion

in determining what matters shall be disclosed. An

in camera inspection of the documents involved,

27A

therefore, will under most circumstances be neces-

sary. See United Staics v. Nixon, 418 U.S. 683, 94

S. Ct. 7090, 41 L. Ed. 2d 1039 (1974); Common-

wealth v. Dominico, supra; People v. Bottom, 76

Mise. 2d 525, 351 N.Y.S.2d 328 (1974). We reem-

phasize that, in resolving requests for disclosure,

routine access to personnel files is not to be had.

Requests for information should be specific and

should set forth the issue in the case to which the

personnel information sought will relate. The trial

court should make available to the defendant only

information that it concludes is clearly material and

relevant to the issue involved. See People v.

Fraiser, 75 Misc. 2d 756, 757, 348 N.Y.S.2d 529

(1973) (subpoena duces tecum issued for personnel

files of police witnesses in prosecution for possession

and sale of controlled drugs). In this regard, the

trial court should exercise its discretion in deciding

the temporal relevancy or remoteness of material

sought. Cf. State v. Carbone, 172 Conn. 242, 262,

374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct.

2925, 53 L. Ed. 2d 1063 (1977); State v. Mahmood,

158.Conn. 536, 540, 265 A.2d 83 (1969); State v.

T owles, 155 Conn. 516, 523-24, 235 A.2d 639 (1967)

(relating to the introduction of evidence at trial) ;

see also 1 Wharton, Criminal Evidence (12th Ed.)

§ 151. Becanse the law furnishes no precise or uni-

versal test of relevancy, the question must be deter-

mined on a case by case basis according to the teach-

ings of reason and judicial experience. See State

v. Jones, 166 Conn. 620, 624, 353 A.2d 764 (1974) ;

Pope Fowndation, Inc. v. New York, N.A. @ H.

R. Co., 106 Conn. 423, 435-36, 138 A. 444 (1927).

It seems to us that in this case, where the defend-

ant’s right to impeach the state’s key witness is

involved, an in camera inspection by the trial judge

of the witness’ personnel file for material relevant

28A

to the issue of credibility would have been appro-

priate. The trial court’s refusal to do so constituted

error.”

Our conclusion that there was error, however,

does not end the matter. We must .ietermine

whether the error was so prejudicial to the rights

of the defendant as to deprive him of a fair trial,

and so, to constitute harmful error. State v. Ruth,

Conn. (41 Conn. L.J., No. 50, pp. 14, 17) (1980) ;

State v. McClaim, 171 Conn. 293, 300, 370 A.2d 928

(1976). The defendant does not argue that this

claim involves the violation of a constitutional right

and, therefore, the burden rests upon him to dem-

onstrate the harmfulness of the error. See State

v. Ruth, supra; State v. Pepe, 176 Conn. 75, 81, 405

A.2d 51 (1978) ; cf. Chapman v. California, 386 U.S.

18, 24, 26, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

We have determined that the error was harm-

less. That conclusion rests upon several factors.

The defendant had other avenues available to him

to impeach the credibility of Cope. He could have

called witnesses to testify to Cope’s reputation for

truth and veracity. He could have cross-examined

Cope concerning any prior disciplinary proceedings

that related to his truth and veracity, and he makes

no claim that he was denied that right. He could

have deposed Cope or his superiors prior to trial.

He could have filed and pressed motions for dis-

@ personnel file at trial. It is weil to remember in this regard that

the right of crose-cxamination is fundamental in a criminal

see State v. Lussi, 147 Conn. 40, 46-47, 156 A.3d 505 (1950);

to admissibility.” 3A Wigmore, Evidence (84 Ed.) §

United States v. lovia, 18 ¥.B.D. 335, 338 (B.D. N.Y. 1968);

He.

tel

poena. Significantly, the defendant failed to pursue,

or or failed to claim that he was denied the right to

pursue, any of them.

The most significant factor leading to the con-

clusion that the error was harmless is that Cope’s

credibility was not crucial in this case. The defend-

ant never directly or indirectly attacked the factual

basis giving rise to this prosecution. He did not

file an alibi defense. The only evidence presented

by the defendant was the testimony of the owner -

of the Cadillac, Raymond Ruszala. By his testi-

mony, the defendant sought to have the jury believe

that Ruszala had loaned the Cadillac to Kenyon in

order for Kenyon to decide whether he wouid buy

it from Ruszala and that Kenyon, who decided not

to purchase the car, was delivering it to the defend-

ant on the date of the arrest so that the defendant

could, in turn, give the car back to Ruszala. The

evidence presented, thus, suggested that although

the defendant was arrested while in control of a

vehicle containing marijuana, that marijuana was

not his but Kenyon’s.” Therefore, the objective

underlying facts upon which the prosecution

depended were not in dispute, only the interpreta-

tion to be accorded those facts. We conclude, there-

fore, that the error was harmless to the defendant.

There is no error.

In this opinion the other judges concurred.

™ Kenyon was deceased at the time of trial.

30A

APPENDIX B

NO. 9326

State of Connecticut : SUPREME COURT

Wei : STATE OF CONNECTICUT

Jerome Januszewski : September 18, 1980

= ORDER

The Defendant's Motion To Reargue

having been presented to the Court

it is hereby

ORDERED denied.

By the Court,

/s/ Donald H. Dowling

CHIEF CLERK

Notice: Cassidento, Odell & Graham

C. Robert Satti, State's Atty.

Sept. 19, 1980.

Trial Court

31A

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.