# Petition — Januszewski v. Connecticut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0796%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 453 U.S. 922 ## Text a ke , Pree | 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 7. 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 *F Bi 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, sd 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).. 15 17 16 13 13 21 21 24 a 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 5 5 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. 10 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 ¢ iv r te a 15 25 26 15 28 15 15 15 16 15 16 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 1 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. 4 lf a fi iia leat vs af §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; 5 (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 7 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 8 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 10 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 ll 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 a 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. 12 yi 7. 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 13 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 RS 14 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 15 371, (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 16 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. 17 > 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 18 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- 19 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 20 5 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. 21 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 22 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 23 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 24 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 25 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 26 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 27 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. 28 ¥ 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 29 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 30 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. 31 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 32 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 33 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; 1A 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. I. 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.” 3A 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. A 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 4A 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). 5A 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 6A 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 oe 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.° B 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 9A ee 7. 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 TE re at aT 4 Fae att begat Eyl Git Het tsi it tebe teet TH: teed 4 in refusing to suppress evidence obtained in the course of that search.” C 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. TE 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 7% 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- I 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 7% 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 7+ 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. If 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); as EF 7 to admissibility.” 3A Wigmore, Evidence (84 Ed.) § United States v. lovia, 18 ¥.B.D. 335, 338 (B.D. N.Y. 1968); He. tel it il i Hy a EE E *% 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0796%3A1. Public record. Not legal advice.