State v. Jackson

226 A.2d 804, 4 Conn. Cir. Ct. 125, 1966 Conn. Cir. LEXIS 187
CourtConnecticut Appellate Court
DecidedMarch 3, 1966
DocketFile No. CR 6-38087
StatusPublished
Cited by1 cases

This text of 226 A.2d 804 (State v. Jackson) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jackson, 226 A.2d 804, 4 Conn. Cir. Ct. 125, 1966 Conn. Cir. LEXIS 187 (Colo. Ct. App. 1966).

Opinion

Jacobs, J.

The defendant is charged in a two-count information with a violation of § 30-77 of the General Statutes. More specifically, she is charged with (1) the sale of alcoholic liquor without a permit, [126]*126and (2) owning and keeping alcoholic liquor with intent to sell — all in violation of the Liquor Control Act. The offense with which she is charged is a misdemeanor. General Statutes §§ 30-113, 1-1.

On February 16, 1966, the court held a hearing on the defendant’s motion to suppress the evidence, in obedience to § 54-33f. The defendant has alleged in the motion the statutory grounds for the suppression of the evidence, to wit: (1) the property was seized without a warrant; (2) the complaint and warrant under § 30-107 are insufficient on their face; (3) there was not probable cause for believing the existence of the grounds on which the warrant was issued; (4) the warrant was illegally executed; and (5) the warrant was not returned with reasonable promptness.

The hearing on the motion developed a factual background which may be summarized as follows: Detective Stanley Barakis has been associated with the New Haven police department for the past fifteen years, during the last three of which he has been, and he still is, assigned to the special service division of the department. On January 23,1966, at or about 1:30 a.m., he received information from an informant that the defendant “was selling alcoholic beverages in her apartment at No. 128 Asylum Street” in the city of New Haven. Thereupon, Detective Barakis and his fellow officers gave the informant United States currency and instructed him to go to the defendant’s apartment to ascertain whether she would sell him a bottle of alcoholic liquor. The informant was at all times under the personal observation of Detective Barakis. He saw the informant enter the premises. Detective Barakis was some fifty feet away from the informant. Within a matter of about five minutes, the informant came out of the defendant’s apartment. [127]*127He had purchased a half-pint of Gordon’s dry gin from the defendant, for which he paid her $2.25. At about 2 a.m., on the aforesaid date, or within less than half an hour of the receipt of the information, Detective Barakis knocked on the door of the defendant’s apartment, which is located on the second floor of No. 128 Asylum Street, identified himself as a police officer and placed the defendant under arrest for a violation of the Liquor Control Act. The court finds as a fact that the defendant was made fully aware that Detective Barakis was a police officer and the purpose of the entry into her apartment. She denied having alcoholic liquor in the premises. Detective Barakis then asked of her: “Do you mind if I look around?” She replied: “Go ahead,” whereupon a search was made for alcoholic liquor. The search uncovered forty-nine one-half pints of alcoholic liquor concealed in the defendant’s washing machine. The defendant was taken to headquarters, where she was booked on the foregoing charges. The officers seized the liquor.

At the outset, we point out that the search here was not a “general” or “exploratory” search, without any specific objective in mind but in the hope that evidence of crime might be found. General or exploratory searches are universally condemned as unreasonable and therefore violative of the fourth amendment, even though incidental to a lawful arrest. See Go-Bart Importing Co. v. United States, 282 U.S. 344; United States v. Lefkowitz, 285 U.S. 452; Kremen v. United States, 353 U.S. 346; United States v. Kirschenblatt, 16 F.2d 202; People v. Loria, 10 N.Y.2d 368.

Section 30-107 authorizes any “police officer, acting within his . . . city . . . , without a warrant, [to] arrest any person whom he finds in the act of illegally . . . selling alcoholic liquor, and seize the [128]*128liquor.” It cannot be said that the evidence supports a finding that Detective Barakis actually saw the defendant in the act of illegally selling alcoholic liquor. Therefore, the court must conclude that § 30-107 can have no application here.

It remains to be considered whether the police officer was justified in making the arrest without a warrant “on the speedy information of others.” See § 6-49. In State v. Wilson, 153 Conn. 39, the defendant was apprehended within a matter of hours by state and local police officers, and the Supreme Court sustained the arrest as coming within the provisions of § 6-49. In the present case, the arrest Avas made Avithin half an hour of the time Detective Barakis received the information. Thus, if the arrest Avas lawful, a search incidental to it must stand.

In the case at bar, the arrest preceded the search. If, for example, the search had been made first, a presumption would arise that the primary purpose of the entry was to search rather than to arrest. See Jones v. United States, 357 U.S. 493; Lee v. United States, 232 F.2d 354; cf. People v. Simon, 45 Cal. 2d 645; People v. Martines, 228 Cal. App. 2d 245 (in California, apparently, the search may precede the arrest). Moreover, where the search is incident to the arrest, the search of the place must be reasonable. And Avhat is reasonable, the Supreme Court of the United States has said, Avill depend upon the facts and circumstances of each case. See United States v. Rabinowitz, 339 U.S. 56. The general rule is that a search Avill only be held reasonable Avhere the officers are searching for some specific item or group of items. United States v. Rabinowitz, supra, 62. Also, the Supreme Court of the United States has held that a Search is unreasonable if it is too remote in time and place from the arrest. See Preston v. United States, 376 U.S. 364; cf. Stoner v. California, 376 U.S. 483 (search con[129]*129ducted two days after the arrest, in a different state, could not be considered incident to a lawful arrest). A search incident to an arrest is limited to a search for (1) articles which may furnish the means of an escape; (2) contraband; (3) the fruits of the crime; (4) instruments or implements of the crime. The Supreme Court of the United States has repeatedly limited the articles which may be seized as an incident to an arrest to these four categories. See Gouled v. United States, 255 U.S. 298; Agnello v. United States, 269 U.S. 20, 30; Harris v. United States, 331 U.S. 145, 154; Abel v. United States, 362 U.S. 217.

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Bluebook (online)
226 A.2d 804, 4 Conn. Cir. Ct. 125, 1966 Conn. Cir. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackson-connappct-1966.