Developments in Connecticut Criminal Law: 1989-1990

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 65 Pg. 37
Connecticut Bar Journal
Volume 65.






The past term undoubtedly will be remembered for our Supreme Court's refusal to import into our state constitution the federal "good faith" exception to the exclusionary rule. Yet, the symbolic importance of the Court's willingness to expand the rights of criminal defendants beyond the safeguards of the federal constitution should not obscure the absence of a consistent jurisprudence for state constitutional claims involving police conduct. The state of flux that this jurisprudence is undergoing is reflected in the Court's decision to reconsider in the coming term its conclusion that the state consitution provides greater protection than its federal counterpart in the area of probable cause determinations underlying law enforcement searches.

Our Supreme Court's discomfort with the general principle of relaxing constitutional protection for the "good faith" actions of law enforcement appears to have spilled over into its interpretation of the federal "plain view" doctrine. The Court found that there was an "inadvertence" limitation on this doctrine, and it declined to define "inadvertence" in terms of whether the police had acted in "good faith." The United States Supreme Court resolved this matter for purposes of federal law when it determined that "inadvertence" was not even a part of the "plain view" doctrine.

Also of note in the past term was the continuing division within our Supreme Court over the meaning of the state constitutional right to a probable cause bearing. The debate revolved around whether a defective probable cause determination requires a new trial when a subsequent conviction results from a fair trial. Equally significant was the Supreme Court's narrowing of a trial court's discretion to deny the state permission to appeal. Not only was our highest court protecting its own jurisdiction, but it was also seeking to preempt any inclination on the part of trial courts to shield their rulings from review.


The past term of the Appellate Court has been marked not only by a change in membership, but also by a willingness to question and find insufficient the indicia of suspicion that the police proffer to justify searches and seizures. Whether the Appellate Court's inquiry has been too exacting and has not accorded adequate latitude to law enforcement must await review by our Supreme Court in the coming term.

This article will focus in some depth on the decisions of the Supreme and Appellate Courts that have given rise to the developments in Connecticut's criminal law noted above. Brief mention will also be made of a series of cases that are clear departures from precedent.


A. The "Good Faith" Exception

In State v. Marsala,(fn1) our Supreme Court determined that Article First, § 7 of the Connecticut Constitution does not allow for a "good faith" exception to the rule that evidence obtained by unconstitutional means is inadmissible. The United States Supreme Court, in United States v. Leon,(fn2)has recognized such an exception where police officers reasonably rely on warrants issued by neutral magistrates that prove to be defective due to an absence of probable cause. What stands out about the decision in Marsala is that, although a state constitutional provision is construed, there is no attempt to ascertain its historical meaning.

In reaching its decision, the Marsala Court began by weighing the costs against the benefits of a "good faith" exception to the exclusionary rule. The Court agreed with the Leon critics that there was no need for an exception to a rule that has had only a marginal impact on criminal prosecutions.(fn3)Also, in the Marsala Courts view, the real cost of a "good faith" exception would be borne directly by the constitutional provision that the exclusionary rule was designed to protect: Article First, § 7, and its probable cause requirement for warrants. According to the Court, the rule is inseparable from this constitutional provision.(fn4)

While recognizing that society suffers certain costs when relevant evidence is suppressed in criminal trials, the Court in


Marsala concluded that it would be more beneficial to preclude any exception to the exclusionary rule. The Court stated that the exclusionary rule has been a "significant factor inducing Judges to take seriously their obligation to ensure that the probable cause requirement of Article First, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers."(fn5) In addition, the Marsala Court was convinced "that the good faith exception would encourage some police officers to expend less effort in establishing the necessary probable cause to search and more effort in locating a Judge who might be less exacting than some others when ruling on whether an affidavit has established the requisite level of probable cause."(fn6) The Court, following justice Brennan's dissent in Leon, argued that if evidence is consistently excluded due to a defective warrant, "police departments will surely be prompted to instruct their officers to devote greater care and attention to providing sufficient information to establish probable cause when applying for a warrant . . . ."(fn7)

Marsala overruled the Appellate Court decision in State v. Brown, (fn8) that had recognized a "good faith" exception to the exclusionary rule. The nearly exclusive focus in Marsala on contemporary arguments addressing this exception suggests that the Court will be inclined to apply a similar analysis to future claims that may arise under Article First, § 7. Such an approach to state constitutional analysis may reflect the fact, as noted in Brown, that "[t]he available records regarding the purpose [of the authors] of , our state constitutional bill of rights shed no light on whether Article First, § 7, should be read to include a good faith exception."(fn9) However, other historical sources were available to the Marsala Court. Both the common law antecedents to § 7 and the legal culture, or popular attitudes toward crime prevention and control, at the time of the constitutional convention of 1818 surely shed light on the values that guided Connecticut's constitutional framers.(fn10) Sound jurisprudence requires that these sources be mined, even if contemporary logic is ultimately found to be more



In contrast to the limited type of state constitutional analysis employed in Marsala, the Court, in State v. Lamme,(fn11) undertook a more complete analysis of a different state constitutional provision, Article First, § 9. The Lamme Court examined the "text, the history, and the policy embodied in Article First, § 9['s]" requirement that "no person shall be ... detained ... exceptin cases clearly warranted by law."(fn12) First, the Court in Lamme found that "[t]he available case law, in the period immediately antedating the adoption of the constitution of 1818, suggests that the official investigation of potentially criminal behavior was not then viewed as constitutionally suspect."(fn13) Only then did the Court turn to contemporary legal arguments and import into § 9 the federal principles underlying Terry v. Ohio,(fn14) including a "reasonable and articulable suspicion" standard for investigatory detentions short of an arrest.(fn15)

The case law for the period prior to the 1818 Constitution also indicates that there was a "good faith" exception to tort actions, the remedy then available for police overreaching.(fn16) Marsala is silent on this useable past. Is the common law history of our state constitution only of value when it comports with how our highest Court views the demands of contemporary society?

B. The Inadvertence Limitation on the Plain View Doctrine

The same general attitudes that resulted in our Supreme Court's refusal to relax the safeguards of Article First, § 7 for the 11 good faith" actions of the police may have also influenced its determination that there is an "inadvertence" limitation on the federal plain view doctrine. In State v. Hamilton,(fn17) the Court interpreted this doctrine to mean that when the police are legitimately on the premises, they may carry out a warrant-less seizure of evidence in plain view only if, inter alia, that evidence is found inadvertently. The Court held that " 'the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise justified


search.(fn18) Significantly, the Court declined to follow the Second Circuit's broader construction of the "inadvertence" limitation, as set out in United States v. $10,000 in United States Currency.(fn19) In the Second Circuit's view, " 'inadvertence' permits a...

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