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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.