Opposition — Connecticut v. Schonagel
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
t
Office - Supreme So :
FIL!
D
yeh 25 1983
No. 82-2117 ALEXANDER L. STEVAS |
CLERK
In The
Supreme Court of the United States
October Term, 1983
4)
<)
STATE OF CONNECTICUT,
Petitioner,
VS.
FREDERICK SCHONAGEL,
Respondent.
4)
BRIEF IN OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF CONNECTICUT
4)
4)
SALVATORE C. DePIANO*
DAIGA G. OSIS
DePiano & Palmesi, P.C.
56 Lyon Terrace
Bridgeport, Connecticut 06604
Telephone: (203) 335-3187
Attorneys for the Respondent
*Counsel of Record
PRINTED BY - FABCOINC . Bridgepon. Cl Oseus
TABLE OF CONTENTS
Pages
pg gk ee rere eric i
cL ee PreePCerero rs Tor ee il
Constitutional and Statutory Provisions ........... vi
SS PROUD wc nv occcaks bad bial beakennenne 2
OE OE CE TOOE.. 5.5.0 cade ncuvni bane veavenine 3
ME. Sa Sees conse ukdee esse nbenh Ceee Geena 3
B. Procedural Background .....scucccencdhencuon 5
PU | 5 odck:s eves vevevestos ceubaakuuevnaten 6
Semmiansy OF Asguaemt oo ccccuctcabasueteaneaee 6
I. No Exigent Circumstances Justified The
Warrantless Search Of The Respondent’s
Business Premises For Specifically Identified
Criminal Evidence Four Days After A Fire
Had Destroyed the Buildings. ................. 7
I]. The Connecticut Supreme Court Did Not
Err In Concluding That The Trial Court Had
Correctly Determined That The Respondent
Had Retained A Legitimate Expectation Of
Privacy In Whatever Remained Of His Burnt
Property At The Time Of The Search. ......... 10
Ill. The Connecticut Supreme Court’s Decision
Rested On Independent And Adequate State
een inare mepenrigy S82 x SE 13
ii
TABLE OF CONTENTS — Continued
Pages
a ah Blows 6 Gu.6 9 4 00. 5 8s 66a dys ind b4 0 a's 19
TEEPE CPET ACE TT 20
TABLE OF AUTHORITIES
Cases:
Connecticut v. Johnson, SE
EE eee 15
Crumady vy. The J.H. Fisser, 358 U.S. 423 (1959) ... 13
Fare v. Michael C., 442 U.S. 707, reh’g denied,
TE RUE a 5a 6p on 666 s00sbus beeees 15, 16
General Talking Picture Corp. v. Western Electric
SE ER, BPD UODSTD «so cins cscs vchenesvecests 13
Martinez vy. California, 444 U.S. 277 (1980) ........ i)
Michigan v. Tyler, 436 U.S. 499 (1978) ........... 6, 9
10, 12
Minnesota vy. Clover Leaf Creamery Co., 449 U.S.
aa k nods ods. oaean tous heen ss 15, 16
NLRB v. Pittsburgh Steel Co., 340 U.S. 498 (1951) .. 6
North Carolina v. Butler, 441 U.S. 369 (1979) ...... 16
Oregon v. Hass, 420 U.S. 714 (1975) ..........00.8. 16
Pruneyard Shopping Center v. Robins, 447 U.S.
a ten Bh anki 5's 0 6in-W 0'90e WU 6 tee ave 15, 16
Smith v. Maryland, 442 U.S. 735 (1979) ........... 12
South Dakota vy. Opperman, 428 U.S. 364 (1976) ... 17
United States v. Knotts, Le ee
EIEN, 5 4ir's'y « bac ke dWGa 0 0 gbea Wank wae 12
iil
TABLE OF AUTHORITIES — Continued
Pages
Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d
1211 (D.C. Cir. 1981), cert. denied, 455 U.S.
PI Sethe Noe tae el Sy eens ean 9
Burkart Randall Division of Textron, Inc. v.
Marshall, 625 F.2d 1313 (7th Cir. 1980) .......... v)
Donovan y. Wollaston Alloys, Inc., 695 F.2d |
UI I SS eS Sg eave obik y
United States v. Brock, 667 F.2d 1311 (9th Cir.
ee gaa ae rd ee NS os Oe Sai ts a cas i 12
United States v. Jamieson-McKames
Pharmaceuticals, 65! F.2d 532 (8th Cir. 1981),
cert. denied, 102 S.Ct. 1709 (1982) ............... y
United States v. McCaskill, 676 F.2d 995 (Sth
Cir.), cert. denied, 103 S.Ct. 381 (1982) .......... 11
Satchell v. Cardwell, 653 F.2d 408 (9th Cir. 1981),
cert. denied, 102 S.Ct. 1026 (1982) ............... 9
Smith vy. Heath, 691 F.2d 220 (6th Cir. 1982) ........ 9
United States vy. Lawson, 502 F.Supp. 158 (D. Md.
ST 630s xc sabincdvatucusab eres Ceetheenakes )
United States v. Johnson, 524 F.Supp. 199 (D.
SC MUEER. cd cckineee sod 0 su evenensaneakeaeine 9
Chaplin v. Balkus, 189 Conn. 445, 456 A.2d 286
Rn ha tne d a Neve KGS hb bang baw ees Cn 11
Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d
oT Ba ere ey ery ster ergy co 17
Commonwealth vy. Campana, 455 Pa. 622, 314
A.2d 854, cert. denied, 417 U.S. 969 (1974) .... 14, 18
+ » pele
iV
TABLE OF AUTHORITIES — Continued
Pages
Commonwealth y. Frodyma, 386 Mass. 926, 436
PTL Wid CORA): s.o'sc.cc lecent cua ckekenwen 9, 10
Cronk y. State, Ind . 443 N.E.2d 882
SUED cio vs abv oc0cut erbium carcass Oa eeees eae y
Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553
COEOE it's 6 60 odds 4 cmes.e0 0s eae eee 14, 17
Horton v. Meskill, 172 Conn. 615, 376 A.2d 359
tt) See Gar oP IPL Are Py warm rome ph pag 17
People v. Beavers, 393 Mich. 554, 227 N.W.2d
511, cert. denied, 423 U.S. 878 (1975) ........... 14
People v. Bradley, !132 Cal. App. 3d 737, 183 Cal.
Pee, S56 (ISS E) avs okay ccacivicceseukiueseaeee 10
People v. Krivda, 8 Cal. 3d 623, 504 P.2d 457, 105
Cal. Rptr. 521, cert. denied, 412 U.S. 919 (1973) .. 14
People v. Longwill, 14 Cal. 3d 943, 538 P.2d 753,
133 Cal: Retr. ZOE CIGTD) oes oe ba eee oreesawoes 16
People v. Peques, 412 Mich. 851, 312 N.W.2d 83,
cert. denied, 423 U.S. 878 (1975) ........0 cece eee 14
People v. Richards, 94 Il]. 2d 92, 445 N.E.2d 319
CODES Siiin weds vine vin dsdosweeteessieeseenaeas 9
Reeves v. State, 599 P.2d 727 (Alaska 1979) ........ 18
Roundhouse Construction Corp. v. Telesco
Masons Supply Co., Inc., 170 Conn. 155, 365
A.2d 393, cert. denied, 429 U.S. 889 (1976) .... 13, 14
Society for Savings v. Chestnut Estates, Inc., 176
Conn. 563, 409 A.2d 1020 (1979) 2... .. cee eee eee 14
State v. Benoit, R.I, ___ , 417 A.2d 895
CESS soe vans cues caves cts tuevea eee 18
¥
TABLE OF AUTHORITIES — Continued
Pages
State v. Biller, 190 Conn. 594, __. A.2d —___
ee a ike So wiki an 08 oe ho ee haem 16
State v. Borst, 278 Minn. 388, 154 N.W.2d 888
yd cE ss oh os.64 Ck Abe Neos p HOUTEN EERE es 18
State v. Canby, 252 S.E.2d 164 (W. Va. 1979) ...... 18
State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973) .. II
State v. Fitzsimmons, 94 Wash. 2d 858, 620 P.2d
Lk oe ack aa ward dee eeed es cb awe ba 14
State v. Guertin, 190 Conn. 440, ___ A..2d
URS RES peat MIME AT KS 9a Seen ea 18, 19
State v. Helfrich, 183 Mont. 484, 600 P.2d 816
I oe a i Oe Se eS Sanaa 18
State v. Miyasaki, 62 Hawaii 269, 614 P.2d 915
SN PE oo a dete WEwe Pewee s bs cb ncedeceeecees 18
State v. Nardini, 187 Conn. 513, 447 A.2d 396
eh a nd. pidhe nb ud bee eseed eae 11
State v. Opperman, 247 N.W.2d 673 (S.D. 1976) .... 17
State v. Passerin, 449 A.2d 192 (Del. 1982) ......... 10
State v. Shonagel, 189 Conn. 752, 459 A.2d 106
SE GN Cid Shs 4 dia duis We bv 6a Min Oe 5, 8, 9, 10,
12, 13, 14,
16, 19
State v. Vernon, 385 So. 2d 200 (La. 1980) ......... 17
Valley v. Fazzina, 187 Conn. 423, 446 A.2d 1068
DE cain ok k be Seta 6 ca eae 96 Cake be eae Oot 1]
Cologne v. Westfarms Associates, 37 Conn. |
Supp. 90, 442 A.2d 471 (1982) ........ cee eenees 15
yea
vi
TABLE OF AUTHORITIES — Continued
Pages
Doe v. Maher, 8 C.L.T. No. 18 at 7 (May 3, 1982) .. 17
Fox vy. First Bank, 8 C.L.T. No. 6 at 14 (Feb. 8,
Os co a ee ota 17
CONSTITUTIONAL PROVISIONS
Constitution of the United States, Amendment IV .. 7,
13, 18
Constitution of the United States, Amendment
Ng er 7, %3
Constitution of the State of Connecticut, article
nF UES ein ke. ic eWdeeé 93.6 se'sen aah
18
Connecticut Rules of Court, Rules of the Supreme
RE PP et ee ed Pete rr 1]
STATUTES
Connecticut General Statutes §53a-48 .............. 5
Connecticut General Statutes §53a-112 ............. 5
CONSTITUTIONAL PROVISIONS
Constitution of the United States, Amendment IV:
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
Vii
CONSTITUTIONAL PROVISIONS — Continued
describing the place to be searched, and the persons or
things to be seized.
Constitution of the United States, Amendment XIV,
Section |:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they reside.
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person
of life, liberty or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
Constitution of the State of Connecticut, article first, §7
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches
and seizures; and no warrant to search any place. or to
seize any person or thing shall issue without describing
them as nearly as may be, nor without probable cause
supported by oath or affirmation.
Connecticut Rules Of Court, Rules Of The Supreme Court
§3063: “Errors Considered” (1983)
The supreme court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial. The supreme court may in the
interest of justice notice plain error not brought to the
attention of the trial court.
; ici
No, 82-2117
In The
Supreme Court of the United States
October Term, 1983
STATE OF CONNECTICUT,
Petitioner,
VS.
FREDERICK SCHONAGEL,
Respondent.
4)
BRIEF IN OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF CONNECTICUT
4)
./
To The Honorable Justices Of The United States Supreme
Court:
The Respondent, FREDERICK SCHONAGEL,
hereby files this brief in opposition to the Petition fora Writ
of Certiorari to review the judgment of the Supreme Court
of Connecticut rendered in this matter on April 26, 1983.
2
QUESTIONS PRESENTED
Respondent-defendant was convicted of conspiracy to
commit arson in the Superior Court of Connecticut. The
Supreme Court of the state set the conviction aside finding
that the trial court had committed constitutional error by
failing to suppress two metal containers seized by the police
during a warrantless search of the Respondent's business
premises conducted four days after a fire had destroyed the
buildings. The questions presented by this Petition for
Review are:
Whether any exigent circumstances justified the
warrantless search of the Respondent's business
premises for specifically identified criminal evidence
four days after a fire had destroyed the buildings.
Whether the Connecticut Supreme Court erred in
concluding that the trial court had correctly determined
that the Respondent had retained a_ legitimate
expectation of privacy in whatever remained of his burnt
property at the time of the search.
. Whether the Connecticut Supreme Court's decision
rested on independent and adequate state grounds.
3
STATEMENT OF THE CASE
FACTS
During the pre-dawn hours of Friday, September 23,
1977, a violent explosion followed by an intense fire
destroyed two commercial buildings constituting “Tire
City”, an automobile tire sales and service facility owned by
the Respondent in Bridgeport, Connecticut. The intensity of
the blaze led firefighters to believe that an accelerant had to
be involved. Despite this conclusion, however, the record
does not reveal that any authority commenced an
immediate arson investigation or applied for a judicial
warrant to do so.
Police officers patrolling the area nearby heard the
explosion, saw the “globe of flames” and rushed to the
scene. Upon arrival, they noticed an individual being
dragged out from behind one of the buildings whose clothes
smelled strongly of gasoline. This person was 15-year-old
John Velasquez of Bridgeport, who had been injured by the
explosion. The officer in charge supervised the boy's
removal to a hospital and also stationed a patrolman to
watch the premises around the clock. This police guard
remained at the site through Wednesday, September 28th.
A building official from the City of Bridgeport arrived
the following morning. Without consulting the owner, he
ordered the buildings demolished because their burnt-out
state endangered the safety of the people in the area. As part
of the contract, the wrecker was also required to remove the
debris from the scene. The demolition, however, did not
commence immediately because representatives of the
insurance carrier requested a postponement of the wrecking
in order to obtain photos and measurements of the two
4
buildings involved. The request was granted and no work
was done until the insurance company gave the signal to
proceed several hours later. The wreckers were at liberty to
begin removing the debris concurrent with the demolition
but chose not to do so. Instead, they commenced removal of
the rubble sometime in the forenoon of Monday, September
26th. By that time, John Velasquez had recovered
sufficiently to be questioned by the police. He stated that he
and his brother had set the blaze at the owner's request.
They allegedly caused the explosion by igniting gasoline
contained in several containers provided by the Re-
spondent.
When the police heard mention of the gasoline
containers, an officer was immediately dispatched to check
the ruins of “Tire City” for this incriminating evidence. The
search commenced on midday of Monday, September 26th
and continued through Tuesday, September 27th. No
attempt was made to secure a search warrant at any time
during this two day period. The police also made no attempt
to halt the demolition or the removal of the debris. As a
result of the search, the police seized two metal containers
on September 26th and some brick and soil samples the
following day. Subsequently, the Respondent was arrested
and charged with conspiracy to commit arson.
At his trial, Frederick Schonagel moved to suppress all
of the evidence seized pursuant to the warrantless search.
The trial court, however, suppressed only the brick and soil
samples taken on the second day of the search (P.A. 16)! and
‘References to the Petitioner's Brief and Appendix will be as follows:
Petitioner's Brief (P.B. )
Petitioner's Appendix (P.A. )
5
ruled that the warrantless seizure of the metal containers
was justified by exigent circumstances. The judge
apparently accepted the state’s argument that the
demolition and clearing of the site required immediate
action by the police in order to prevent the potential loss of
criminal evidence.
Following his conviction, the Respondent appealed the
trial court’s ruling to the Connecticut Supreme Court,
which found error and ordered a new trial.
PROCEDURAL BACKGROUND
By amended information dated June I1, 1980, the
Respondent was charged with conspiracy to commit arson
in the second degree in violation of Connecticut General
Statutes §§53a-48 and S3a-112. (P.A. 3) On December 17,
1979, he had filed a motion to suppress evidence seized
during a warrantless search of his commercial premises on
September 26, 1977. (P.A. 17) On July 2, 1980, the trial
court rendered an oral decision granting the motion in part
and denying it in part. (P.A. 16)
The Respondent was tried to a jury which rendered a
verdict of guilty on July 17, 1980, and judgment entered on
November 7, 1980. The Respondent appealed his conviction
to the Supreme Court of Connecticut charging, inter alia,
that the trial court's failure to suppress the metal containers
seized on September 26, 1977, violated his rights under the
applicable provisions of both the Constitution of the United
States and the Constitution of the State of Connecticut.
(P.A. 4)
On April 26, 1983, the Connecticut Supreme Court
reversed the conviction ordering a new trial. State v.
Schonagel, 189 Conn. 752, 459 A.2d 106 (1983). (P.A. 1-15)
6
The court found that under the circumstances the state had
not met its burden of demonstrating the existence of
sufficient exigent circumstances to justify the warrantless
search. It also ruled that the trial court had not committed
plain error by implicitly finding that the owner of burnt
premises retains a legitimate expectation of privacy in his
property.
ARGUMENT
SUMMARY OF ARGUMENT
The Respondent, Frederick Schonagel, respectfully
urges this Court to deny the Petition fora Writ of Certiorari
because the judgment of the Supreme Court of Connecticut
regarding the constitutional issues raised by the warrantless
search of the Respondent's business premises is in complete
harmony with prior interpretations of the United States
Constitution made by this Court. Since the decision is also
compatible with the case law of other state and federal
courts, it has not contributed to any conflict among
jurisdictions, thereby requiring resolution by this Court. See
N.L.R.B. v. Pittsburgh Stee! Co., 340 U.S. 498, 502 (1951).
In attacking the judgment of the Connecticut tribunal,
the Petitioner suggests that this Court needs to redefine its
decision in Michigan v. Tyler, 436 U.S. 499 (1978).
However, the rules established in that case clearly and
concisely delineated the parameters of exigent circum-
stances permitting warrantless searches of fire sites. That
case also established that the owner of a burnt building
retains his privacy rights in the premises. Tyler has caused
no conflict in later decisions, and therefore, requires no
clarification.
>
Lastly, since the decision of the Connecticut Supreme
Court rests on both federal and state constitutional
principles, independent and adequate state grounds support
that ruling, militating against further review by this Court.
I. No Exigent Circumstances Justified The Warrant-
less Search Of The Respondent's Business Premises
For Specifically Identified Criminal Evidence Four
Days After A Fire Had Destroyed the Buildings.
In appealing his conviction, the Respondent stated that
the trial court’s failure to suppress all of the evidence seized
pursuant to the warrantless search violated his rights under
the fourth and fourteenth amendments to the United States
Constitution as well as article first, §7 of the Constitution of
Connecticut. The Petitioner alleged that the exigent
circumstances exception to the warrant requirement of the
fourth amendment justified the police action in this case.
The gist of the prosecution’s argument was that since the
destroyed premises were being cleared of the debris from the
fire “the police did not have the luxury of time to seek a
warrant” if it wished to prevent the loss of criminal evidence.
Therefore, they claimed that the good faith belief of the
officers that the wreckers might remove or destroy the
gasoline containers mentioned by Velasquez created a
sufficient exigency to render the search and seizure
reasonable. (P.B. 7) However, both in its brief and on oral
argument the state failed to explain why, in light of the early
suspicion of arson, the police had failed to secure a warrant
to conduct an investigation during the four days which had
elapsed since the fire.
In rejecting the Petitioner’s exigency excuse, the
justices of the Connecticut Supreme Court first noted the
8
well-settled principle that “anyone claiming an exemption
from [the warrant] requirement bears the burden of showing
the need for it,” State v. Schonagel, 189 Conn. 752, 758, 459
A.2d 106, 110 (1983) (P.A. 6), and “that the existence of
exigent circumstances is a question of fact.” Id. at 762, 459
A.2d at 112. (P.A. 9) Accepting the Petitioner's arguments
regarding the possibility of the imminent removal of
evidence from the fire site, the court nevertheless denied the
State's exigency claim:
The present record rebuts exigency because it
contains nothing to show that it was impossible or
unreasonable for the police to obtain a temporary
halt to the removal of debris while they went to get
a warrant. Apparantly, the police made no such
effort. The previous Friday, according to the
evidence, razing of the burnt-out structure had
been halted at the request of insurance investi-
gators, even after the building inspector had
determined the structure to be a hazard to the
public. There was no evidence that, on the
Monday of the search, a delay in completion of the
removal work would have endangered the public
safety, would have created additional danger, or
would otherwise have been unreasonable.
Since a police officer was already on the premises,
he could have ensured that no evidence would be
removed during the short time that obtaining a
warrant would have taken. ... We note, as have
other courts, that it is more difficult to
demonstrate exigency when the claimed risk
relates to the fear of removal rather than of
destruction of evidence that the police want to
seize without a warrant. (citations omitted)
Id. at 763, 459 A.2d at 112. (P.A. 10) Therefore, the court
9
concluded unanimously that “when there are reasonable
alternatives to a warrantless search, the state has not
satisfied its burden of proving exigent circumstances.” Id.
The Petitioner implies that the Connecticut Supreme
Court’s decision is inconsistent with the rulings of this Court
and that “the scope of Michigan v. Tyler, 436 U.S. 499
(1978), could be redefined with more precision as to the
variants of exigency. ... "(P.B. 6) However, the Petitioner
has failed to state exactly which decisions of this Court the
Schonagel decision supposedly contravenes.
In Tyler this Court enunciated that officials do not need
a warrant to enter a burning building to fight the blaze and
to investigate its cause. However, all later investigative
entries and searches specifically aimed at gathering
incriminating evidence are subject to constitutional
probable cause and warrant requirements. 436 U.S. at 51 I-
12. This clear and simple rule has been applied consistently
and uniformly by both federal and state courts. See Smith v.
Heath, 691 F.2d 220, 224 (6th Cir. 1982); Donovan v.
Wollaston Alloys, Inc., 695 F.2d 1, 5(ist Cir. 1982); Satchell
v. Cardwell, 653 F.2d 408, 412 (9th Cir. 1981), cert. denied,
102 S.Ct. 1026 (1982); United States v. Jamieson-McKames
Pharmaceuticals, 65! F.2d 532, 541 (8th Cir. 1981), cert.
denied, 102 S.Ct. 1709 (1982); Burkart Randall Division of
Textron, Inc. v. Marshall, 625 F.2d 1313, 1318 (7th Cir.
1980); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d
1211, 1225 n.16 (D.C. Cir. 1981), cert. denied, 455 U.S. 940
(1982); United States v. Johnson, 524 F. Supp. 199, 204 (D.
Del. 1981); United States v. Lawson, 502 F. Supp. 158, 165
(D. Md. 1980); Cronk v. State, Ind. , 443
N.E.2d 882, 885 (1983); People v. Richards, 94 II]. 2d 92, 445
N.E.2d 319, 322 (1983); Commonwealth v. Frodyma, 386
10
Mass. 926, 436 N.E.2d 925, 932 (1982); People v. Bradley,
132 Cal. App. 3d 737, 183 Cal. Rptr. 434, 438 (1982); State
v. Passerin, 449 A.2d 192, 195-196 (Del. 1982). Therefore,
there is no conflict which this Court needs to resolve.
Furthermore, the Petitioner did not claim that the fire
at the Respondent's premises created the exigency on which
it relies in this case. Therefore, the exigency issue addressed
by Tyler is not relevant to this case and the Petitioner's
request that this Court redefine that case is misplaced.
II. The Connecticut Supreme Court Did Not Err In
Concluding That The Trial Court Had Correctly
Determined That The Respondent Had Retained
A Legitimate Expectation of Privacy In Whatever
Remained Of His Burnt Property At The Time Of
The Search.
Both at trial and on appeal, the Petitioner argued that
the burnt and nearly demolished condition of the premises
divested the Respondent of any reasonable expectation of
privacy, thereby legitimizing the warrantless search. The
Connecticut Supreme Court rejected this argument. First, it
noted that by suppressing the brick and soil samples, the
trial judge had necessarily concluded as a matter of fact that
the owner had not relinquished or lost his expectation of
privacy in the premises. Since the state had not objected to
that portion of the judge’s ruling on appeal, the court
indicated that it could overturn that finding “only if we
found it to be plain error. The record does not support such
a conclusion.” 189 Conn. at 759, 459 A.2d at 110. (P.A. 7)
Under the applicable Connecticut Rules of Court, the
supreme court “may in the interests of justice notice plain
error not brought to the attention of the trial court.”
Connecticut Rules of Court §3063 (1983); Valley v. Fazzina,
187 Conn. 423, 428, 446 A.2d 1068, 1070 (1982). The
Connecticut Supreme Court has established that only two
situations may trigger plain error review. The first is “where
a new constitutional right not readily foreseeable has arisen
between the time of trial and appeal.... The second
‘exceptional circumstance’ may arise where the record
adequately supports a claim that a litigant has clearly been
deprived of a fundamental constitutional right and a fair
trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576, 581
(1973); State v. Nardini, 187 Conn. 513, 516, 447 A.2d 396,
398 (1982); Cf. Chaplin v. Balkus, 189 Conn. 445, 447, 456
A.2d 286, 287 (1983). The same plain error reasoning also
applies in federal courts. See United States v. McCaskill,
676 F.2d 995, 1002 (4th Cir.), cert. denied, 103 S.Ct. 381
(1982). [The claimed error must be a “fundamental error,
something so basic, so prejudicial, so lacking in its elements
that justice cannot have been done ... .”] This reasoning
makes it clear that the rule is concerned with the
fundamental rights of an individual, not the state.
Furthermore, the Petitioner has failed to indicate how the
fairness of the trial was affected by the trial court's factual
finding that the Respondent had not relinquished his
privacy rights in his burnt building.
The plain error issue was neither briefed nor argued to
the Connecticut Supreme Court and the Petitioner raises it
for the first time in this Petition for Review. However, on
its Own motion, that court considered the matter and
concluded that no plain error had been committed.
In examining the record the justices recognized that, at
the time of the search, “the condition of the premises
resulted from both the fire and the dismantling operation
12
ordered by the Bridgeport Building Inspector.” 189 Conn. at
761, 459 A.2d at 111. (P.A. 8) Citing both Tyler and its own
state precedent, the court explained that a fire does not
eliminate the owner's reasonable expectation of privacy in
his building. Id. Similarly, the administratively ordered
wrecking operation was held to not necessarily eradicate the
owner's privacy rights. Id. (P.A. 9)
The court then addressed the Respondent's subjective
expression of his expectation of privacy. This Court stated
recently that an individual’s own conduct must be
considered in determining whether he has exhibited a
subjective expectation of privacy. United States v. Knotts,
U.S. ,103 S.Ct. 1081 (1983); United States v.
Brock, 667 F.2d 1311, 1320 n.8 (9th Cir. 1982); Smith v.
Maryland, 442 U.S. 735, 740 (1979). The Connecticut
justices noted that at the time of the search the Respondent
had recommenced doing business on the premises and that
there was no indication of a “consensual abandonment” of
the right to privacy. 189 Conn. at 760,459 A.2d at 111.(P.A.
8) Therefore, they concluded:
In finding the defendant retained such an
expectation, the trial court might well have
concluded that in the confused aftermath of the
blaze the defendant did not see the full
implication, as far as his privacy interests were
concerned, of the dismantling operation. His
presence on the premises, at the time of the search,
is as Consistent with exercise of his right to privacy
as it is with his abandonment of any such
expectation. We cannot say, under the circum-
stances, that the court’s finding was plainly in
error.
189 Conn. at 762, 459 A.2d at 111-112. (P.A. 9)
13
The Petitioner has cited no authority — other than its
own interpretation of the facts — for the proposition that
this finding “was plain error of constitutional significance.”
It is well-settled that this Court will not grant a Writ of
Certiorari merely to review evidence and draw inferences
from it. Crumady v. The J.H. Fisser, 358 U.S. 423, 429
(1959); General Talking Picture Corp. v. Western Electric
Co., 304 U.S. 175, 178 (1937).
Ill. The Connecticut Supreme Court’s Decision
Rested On Independent And Adequate State
Grounds.
As noted previously, the Connecticut Supreme Court's
decision in this case was fully consistent with this Court's
prior interpretations of the fourth and fourteenth
amendments to the United States Constitution. However,
even if it were assumed, arguendo, that the decision of the
court went beyond the requirements of the federal
constitution, the Petition for Review should be denied
because the Connecticut court clearly relied on the
Connecticut Constitution to at least the same degree it relied
on federal law. The justices prefaced their analysis of the
warrantless search by stating that “the fourth amendment,
and its state counterpart, article first, §7 forbid
unreasonable searches and seizures.” 189 Conn. at 758, 459
A.2d at 110. (P.A. 6) They then cited both federal and state
authorities for the legal principles discussed. The
Connecticut court has explained previously that when the
provisions of the state and the federal constitutions are
identical, its decisions regarding issues raised by both also
rely on both. Roundhouse Construction Corp. v. Telesco
Masons Supplies Co., Inc., 170 Conn. 155, 157, 365 A.2d
14
393, 394, cert. denied, 429 U.S. 889 (1976). The court also
noted in Roundhouse that in such an instance it looks to the
decisions of the United States Supreme Court as “very
persuasive if not controlling authority.” Id. at 158, 365 A.2d
at 394. In a later case, the justices explained that the “due
process clause of the Connecticut Constitution shares but is
not limited by the content of its federal counterpart.” Fasulo
v. Arafeh, 173 Conn. 473, 475, 378 A.2d 553, 554 (1977).
However, as in Schonagel, the court cited both state and
federal cases to support this conclusion. See also Society for
Savings v. Chestnut Estates, Inc., 176 Conn. 563, 569 n.5,
576 n.9, 409 A.2d 1020, 1023 n.5, 1026 n.9 (1979).
A similar approach is taken by other states when state
constitutional provisions parallel their federal counterparts.
See, e.g., State v. Fitzsimmons, 94 Wash. 2d 858, 620 P.2d
999, 1000 (1982); People v. Krivda, 8 Cal. 3d 623, 504 P.2d
457, 105 Cal. Rptr. 521, cert. denied, 412 U.S. 919 (1973);
People v. Peques, 412 Mich. 851, 312 N.W.2d 83, 84(1981);
People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, 516, cert.
denied, 423 U.S. 878 (1975). [“While the result reached
today reflects an analysis of Federal case authority, our
conclusion is based upon the Michigan Constitution and the
protection afforded the people of this state against
unreasonable searches and seizures.”]; Commonwealth vy.
Campana, 455 Pa. 622, 314 A.2d 854, 855, cert. denied, 417
U.S. 969 (1974):
There are, of course, indications in some of the
opinions supporting our judgments that a basis for
the judgments was to be found in federal
constitutional problems. However, there are also
separate reason [sic] advanced for the result that
do not stand on a view of federal constitutional
15
requirements.
Our supervisory power over state criminal
proceedings is broad, and this Court need not, as
a matter of state law, limit its decision to the
minimum requirements of federal constitutional
law.
This must be contrasted with the situation in which the
State court makes no reference to state statutory or
constitutional grounds and is merely analyzing a United
States Supreme Court decision. See Fare v. Michael C., 442
U.S. 707, 717, reh’g denied, 444 U.S. 887 (1979).
Even if this Court determines that Connecticut restricts
the police to a greates extent than is required by the federal
constitution, it cannet aiter the stute’s policy since it is
supported by state law. —-s Court has repeatedly
recognized that its interpretation of the United States
Constitution does not “limit the authority of the State to
exercise its police power or its sovereign right to adopt in its
own Constitution individual liberties more expansive than
those conferred by the Federal Constitution.” Pruneyard
Shopping Center v. Robins, 447 U.S. 74, 81 (1980);
Connecticut v. Johnson, U.S. , 103 S.Ct. 969,
974 n.9 (1983) [“State courts, of course are free to interpret
their own constitutions and laws to permit fewer
applications of the harmless error rule than does the Federal
Constitution.”]; Martinez v. California, 444 U.S. 277, 282
(1980). The United States Constitution simply “defines the
minimum level of rights that citizens are afforded.” Cologne
v. Westfarms Associates, 37 Conn. Supp. 90, 100, 442 A.2d
471, 477 (1982). However, in Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456 (1981), the Justices of this
16
Court explained that while a “state court may, of course
apply a more stringent standard of review as a matter of
state law ‘under the state’s equivalent to the federal
constitution,’ it is not free to impose greater restrictions as a
matter of federal constitutional law than this Court has
imposed.” Id. at 460 n.6. See also Fare v. Michael C., supra;
North Carolina v. Butler, 441 U.S. 367, 377 (1979); Oregon
v. Hass, 420 U.S. 714, 719 (1975).2 Since the restrictions on
the police imposed by Schonagel were based on Connecticut
rather than purely federal precedent, they need not be
reviewed by this Court.
Even prior to this Court's decision in Pruneyard, the
State of Connecticut had explicitly asserted its right to go
beyond the minimum requirements of federal law in the area
of individual constitutional rights:
The equal protection clauses of both the United
States and Connecticut constitutions having a like
meaning, the decisions of the United States
Supreme Court defining federal constitutional
rights are at the least, persuasive authority,
although we fully recognize the primary inde-
pendent vitality of the provisions of our own
constitution. Paraphrasing the language of the
California Supreme Court in People v. Longwill,
14 Cal. 3d 943, 951 n.4, 538 P.2d 753: In the area of
fundamental civil liberties — which includes all
protections of the declaration of rights contained
in article first of the Connecticut constitution —
we sit as a court of last resort, subject only to the
qualification that our interpretations may not
On July 5, 1983, the Connecticut Supreme Court implied its willingness
to expand the rights guaranteed by the sixth amendment on state
constitutional grounds in State v. Biller, 190 Conn. 594, 618 n.12,
A.2d n.12 (1983). °
17
restrict the guarantees accorded the national
citizenry under the federal charter. In such
constitutional adjudication, our first referent is
Connecticut law and the full panoply of rights
Connecticut residents have come to expect as their
due. Accordingly, decisions of the United States
Supreme Court defining fundamental rights are
persuasive authority to be afforded respectful
consideration, but they are to be followed by
Connecticut courts only when they provide no less
individual protection than is guaranteed by
Connecticut law.
Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359, 371
(1977). Similarly in Fasulo v. Arafeh, 173 Conn. 473, 378
A.2d 553 (1977), the court granted mental patients rights
arguably exceeding existing federal safeguards, once again
noting that “[t] he due process clause of the Connecticut
constitution shares but is not limited by the content of its
federal counterpart.” Id. at 475, 378 A.2d at 554. See also
Doe v. Maher, 8 C.L.T. No. 18 at 7 (May 3, 1982) [Medicaid
payments for abortions]: Fox v. First Bank, 8 C.L.T. No. 6
at 14 (Feb. 8, 1982) [Due process requirements in repos-
sessing automobile].
The use of state constitutional provisions to expand
civil liberties is also reflected in the decisions of other states.
See, e.g., State v. Opperman, 247 N.W.2d 673 (S.D. 1976)
[rejecting this Court's decision in South Dakota v.
Opperman, 428 U.S. 364 (1976) regarding inventory
searches of automobiles]; State v. Vernon, 385 So. 2d 200,
204 (La. 1980) [Proof beyond reasonable doubt required for
finding waiver of privilege against self-incrimination],
Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309
~<
18
(1979); State v. Benoit, R.1. . 417 A.2d 895
(1980); State v. Miyasaki, 62 Hawaii 269, 614 P.2d 915
(1980); Reeves v. State, 599 P.2d 727, 734 (Alaska 1979);
State v. Helfrich, 183 Mont. 484, 600 P.2d 816 (1979). In
Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854,
cert. denied, 417 U.S. 969 (1974), the court invoked its
judicial supervisory powers rather than the state constitu-
tion to adopt a “same transaction” test for double jeopardy
analysis. See also State v. Borst, 278 Minn. 388, 154 N.W.2d
888 (1967).
Similarly, Connecticut's decision to develop its own
state exigent circumstances test is demonstrated in a case
decided on June 21, 1983. State v. Guertin, 190 Conn. 440,
A.2d (1983). After a lengthy discussion of the
various existing “tests” for finding exigent circumstances,
the court adopted the rule developed by the Supreme Court
of Appeals of West Virginia in State v. Canby, 252 S.E.2d
164, 167 (W.Va. 1979) requiring a “totality of circum-
stances” approach to determine the reasonableness of police
conduct. 190 Conn. at 453. The court’s criterion is “what a
reasonable, well-trained police officer would believe, not
what the arresting officer actually did believe.” Id.
(emphasis original) The Canby rule also provides that
“unnecessary police-created exigencies are not exceptions to
the warrant requirement.” Id. Noting that Canby “was
decided on the basis of the West Virginia Constitution,” Id.,
the Connecticut Supreme Court reiterated:
We have in the past, including the recent past,
expressed the view that article first §7 of the
Connecticut Constitution provides the same
protection as the fourth amendment. ... In any
event, since the Canby test closely reflects our
latest expression on the kinds of circumstances
19
which would justify a warrantless entry into a
building; see State v. Schonagel, supra, 763; we are
disposed to follow it. (citations omitted)
190 Conn. at 454.
Since Guertin cited Schonagel and contains a marked
absence of federal precedent, it can be inferred that the court
also did not base the Schonagel decision solely on federal
constitutional grounds. Therefore, the decision is supported
by adequate state grounds and does not need to be reviewed
by this Court, even if the enunciated rules exceed minimum
federal constitutional parameters.
CONCLUSION
For the reasons stated above, this Court should decline to
issue a Writ of Certiorari to the Supreme Court of
Connecticut to review the issues raised in this Petition.
Respectfully submitted,
SALVATORE C. DePIANO*
DAIGA G. OSIS
DePiano & Palmesi, P.C.
56 Lyon Terrace
Bridgeport, Connecticut 06604
Telephone: 335-3187
Attorneys for the Respondent
*Counsel of Record
20
CERTIFICATE OF SERVICE
This is to certify that three (3) copies of the foregoing Brief in
Opposition to the Petition for Writ of Certiorari were
mailed, postage pre-paid, on this 22nd day of July, 1983,
to Richard F. Jacobson and Donald A. Browne, Office of
the State’s Attorney, 1061 Main Street, Bridgeport,
Connecticut 06604.
SALVATORE C, DePIANO
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.