State of Connecticut v. Jason P. Bree (2010)

EXCERPT

THE COURT:  Good morning.

ATTY. STANGO:  Good morning, Your Honor.

ATTY. CASTIGNOLI:  Good morning, Your Honor.

THE COURT:  Mr. Bree is present.   Prior to coming out, discussions in chambers, with counsel, involved scheduling, and whether or not going-foreseeing the end of the case in closing arguments and charging, and also a discussion on what, if any, procedures to be adopted in presenting the case to the jury, as we have witnesses to testify in-on each matter, same witnesses testify on each of the matters joined for trial.   Following those discussions, we have come out on the record to begin today's proceedings.

Before we begin today's proceedings, the Court would like to put some preliminary rulings on the record in regard to what we heard yesterday, by way of counsel for Mr. Bree, in challenging the admission of certain evidence.

The first one, as relates to Information docket number ending 89, Illegal Possession of a Weapon in a Motor Vehicle, and the Larceny 6 count, counsel for Mr. Bree urges the Court to exclude that the items sought to be offered during the course of the trial, the weapon identified in Count 1, as well as the cigarettes, in that they were seized by a warrantless search conducted by the police officers who testified here in this courtroom.   A warrantless search, per se, unreasonable, and there were no circumstances requiring their admission without a warrant.   We heard the testimony of the officers receiving a dispatch that a black SUV, with the license number identified, involved in a larceny of-identified even cigarettes, Newport cigarettes, and within minutes, he said less than five, he saw this vehicle and identified the vehicle as the one in the same vehicle matching that description he had just received, and he put his lights on and the vehicle was stopped.   The driver, who he identifies as Mr. Bree, was in the driver's seat, and the passenger was also present in the vehicle.   They were removed from the car, separated, and, at that time, a search was conducted pursuant to that stop.   Counsel urges the Court, and particularly urges the Court, that there was no knife.   In search-as relative to the search, the only thing the search seized was four packs of Newport cigarettes, unclear as to what area of the car in which they were seized, and a butcher knife, longer than four inches in length, was seized under the driver's seat, and those are the-and they were sought to be suppressed.

The Fourth Amendment of the United States made applicable to the states through our Fourteenth Amendment, prohibits unreasonable searches and seizures.   A warrantless search and seizure is, per se, unreasonable, subject to a few well defined exceptions.   There are four recognized situations where a warrantless search of a car may lead to a conclusion that a search was reasonable, and these are:  1) made incident to a lawful arrest;  2) it was conducted when there was probable cause to believe that the car contained contraband, or evidence pertaining to a crime;  3) it was based upon consent;  and 4) it was conducted pursuant to an inventory of a car's content incident to impounding the car.   To the extent that these exceptions are found unavailing to justify a warrantless search, case law guides that under the exclusionary rule, the evidence must be suppressed as the fruit of prior police illegality.   In Connecticut we find that the automobile exception is being justified for two separate and discreet exceptions.   The inherent mobility of an automobile creates exigent circumstances, and the expectation of privacy, with respect to one's automobile, is significantly less than that relating to one's home or office.   And that comes out of the-one of the seminal cases, State v. Budget.

The automobile exception, and particularly highlighting the number 2 as stated, number 2 reads, it was-it was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.   It demands that the officers have probable cause to believe that the vehicle contained contraband.   The absence of probable cause will render any warrantless search unreasonable.

Here we have the testimony of the officer describing how he came to stop the car, and as a result of that stop, dispatch larceny, this car involved probable cause to believe that this car was involved in the commission of the crime.   The car was seized, and a warrantless search was conducted.

Probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made.   Probable cause to believe that particular items sought to be seized are connected with criminal activity, or will assist in a particular apprehension, or conviction, that further delineates what the Court looks to and seeks guidance in determining issues before the Court.   The Court, guided by these in applying the concepts to the facts, denies the Motion to Suppress raised by Mr. Bree, and finds that the search was consistent with what the Court has just identified as the law it believes, governs this area.   Now, in those matters, the Motion to Suppress is denied.

Now, in regard to the statements posed by Mr. Bree, and the Court, guided by what the Court knows to be the admission of Miranda rulings prior to any statement being made or elicited from the defendant, interrogation, one, and first of all there must be custody.   There's no question that Mr. Bree was in custody.   He was in-at least, he was involved, this time, in a jail setting charged with crime.   Police came.   You heard the testimony from the Woodbridge detective, that he, identifying the procedure of advising Mr. Bree of his Miranda Warnings, and considering what the Court must, in terms of whether or not the relinquishment of the right was knowingly and voluntarily entered, the Court heard the evidence from direct and cross-examination of the detective.   He advised him of his rights.   He believed he read at least a portion of the advisement that was offered into evidence.   He indicated that after he read each of the lines identified in the advisement, he initialed that, and advised the officer that even though he would not sign the waiver, where it indicates a signature should be placed, he agreed to speak nonetheless regarding any questions that were offered by way of question and answer.   There was some discussion. whether or not the questions should be placed on the record.   The import of that is that whether or not there was a written waiver that is really of substantial evidence that suggests that the person who's waiving understood that is a factor the Court must consider.   It is not, however, defeating the claim of the State that the relinquishment of the rights were knowingly and voluntarily entered into.   There's no suggestion that Mr. Bree suffered from any mental defect, or at least mental-his I.Q., education, nothing to suggest those factors that the Court looks at in determining waiver that would impact upon the Court's decision.   And the Court's decision is that the waiver was knowingly and intelligently entered into with an understanding that he had a right to counsel, and counsel urges the Court to consider that, based upon the testimony, which testimony I found credible in both of these matters by the detective, as well as the officer.   You might quibble some with the procedures employed, but their testimony was, indeed, creditable.   The detective indicated that, at some point, Mr. Bree stopped answering questions and decided to stop his conversation with them, and he honored that based upon Miranda dictates.   So, that would indicate that earlier, during the course of eliciting-in interrogation you tend to elicit an incriminating response.   That's interrogation.   And only then can you do that after the Miranda Warnings have been advised of whoever the interrogation is being sought from.   So, the Motion to Suppress the Statements, in that they were in violation of the Miranda Warnings, they were not freely and voluntarily given, or that he did not knowingly and intelligently relinquish his rights, the evidence supports the contrary, and that motion is denied.

Outstanding then is the Motion for the Statements as made to the probation officer, whether or not that probation officer should have advised Mr. Bree of his Constitutional Protected Rights via Miranda before questioning him.   I don't if there was any testimony.   I didn't have it played back to the extent there was a question and answer, or that Mr. Bree was, in fact, there pursuant to his agreement of probation, which was not entered.   But, the standard agreement, which was testified to, that any time a probationer, a person on probation, is arrested, they must notify the probation officer.   Now, whether or not that notification has to do with the basis for the arrest, and why I was arrested, and my involvement, that's not before the Court.   What's before the Court was whether or not the probation officer should have advised Mr. Bree of his constitutionally protected rights.   I have no case law in this area to guide me.   I have none.   I reviewed some cases last evening, and they had to do in a juvenile setting with probation officers, and I have right now the research for trying to find, at least, some case law in that issue.   But, guided by other case law, which I would suggest guides this Court, that the probation officer does not have to-is not obligated to provide Miranda Warnings in this setting in the normal course of her duties as a probation officer.   And even if they were, the Court would find that these statements were voluntarily entered into, as Mr. Bree contacted the probation officer pursuant to his obligations, while being on probation, by serving 40 months regarding the arrests, and added the details, and the Court would suggest voluntarily.   And to that end, the admissions, if they are admissions, or the statements made by the defendant, are admissible in the case, the case of State v. Bree in the State's case in chief, that motion is denied.

THE COURT:  Any other outstanding motions?   We have the Identification Motion.   The State has presented evidence in regard to the identification procedure employed in this matter.   Mr. Bree urges the Court, in regard to the identification procedures as testified to, and I'll discuss that in just a moment, that they are volatile of his due process rights in regard to this identification.   Further, we haven't discussed that.   We will discuss whether or not this testimony, as Mr. Bree's lawyer so ably places before the Court, is relative of his due process rights in that the testimony would be an ultimate opinion by the person testifying as to whether or not you were, in fact, the one who committed the robbery, and the Court has read the matter presented to the Court, State v. Finan.   Before we get to that, the identification procedure of whether or not the Court looks at that in determining the pre-trial identification procedure via the due process rights of the individual, particularly, procedures employed must be unnecessarily suggestive.   If it is not, then the inquiry is not-then there's no need to continue.   Second, if the procedure was necessarily suggestive, was the identification nevertheless reliable in light of the totality of the surrounding circumstances?   An eyewitness, or out of court eyewitness, identification should be excluded on the basis of the procedure used to elicit that identification only if the Court is convinced that the procedure was so suggestive, and, otherwise, unreliable as to give rise to a very substantial likelihood of irreparable identification.

Here we have the testimony of the Probation Officer, asked to come and identify whether or not the person in the robbery was Mr.-or identified in the pictures was Mr. Bree. It's clear that she had some background with Mr. Bree as a probationer, she knows him, and she agreed to do that, and identified-her testimony was that she indicated that based upon the clothing.   What I had before me was stills.   Apparently, there was some sequential surveillance that identified movement, and Mr. Bree was identified as the walk-the similar walk identified in detail, the manner in which Mr. Bree walked, which manner was similar to that depicted on the surveillance video, which will be offered as evidence in this courtroom as a full-exhibit should the Court agree.   And also identified was the manner-the clothing, a description of the clothing, was consistent with what the Probation Officer identified as what Mr. Bree usually wore.   Then there was some facial identification regarding the hair.   Based upon that, the identification was that it was, indeed, similar to Mr. Bree. Whether or not that person in that surveillance was, in fact, Mr. Bree, was not that-definitive identification was not made by the Probation Officer.   So, that identification procedure, in and of itself, is not necessarily-unnecessarily suggestive.   Counsel points to the fact that he was the only one in the-at least the stills that I saw, and that would give rise to unusual-unnecessary suggestive identification.   This Court is not persuaded.

The Court finds the testimony of that-of the Probation Officer credible as to what she did, and how she did it, and how she identified that person in the sill-in the still as being similar to Mr. Bree. And those exhibits were-they're all I.D. no, full.   The stills-the defendant's letters-

(ASIDE)

THE COURT:-And  they-I agree with the defendant, the quality of those stills was extremely poor, and lend itself to, at least, I-they represented before the jury whether or not what she testified to connects with the scene in the stills presented to this Court.   But, apparently, what's going to be presented would not be those stills.   It would be something with a different clarity.   She talked about a focus-something assisting her in the clarity of those identifications sequential of the surveillance video.

The Court does not find that that process was volatile of any due process rights of your client, and that testimony can be offered to assist a jury during the case in chief.   That is denied.   Anything else?

Judge William Holden

Holden, William, J.