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Attorney(S)

Ira B. Grudberg, for the appellant (defendant). George R. Tiernan, state's attorney, for the appellee (state).

Judges

KING, C.J.

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Smart Summary

Case Summary: STATE OF CONNECTICUT v. JOSEPH LICARI

Factual and Procedural Background

The defendant was charged by an information, in the first part with the crime of policy playing and in the second part as a third offender. The matters were tried to a jury in the Superior Court in New Haven County before Shannon, J. The defendant entered a plea of not guilty on March 3, 1964. He was arrested under a bench warrant issued by a judge of the Superior Court upon an original information filed by the state's attorney. Two days after entering his plea (March 5, 1964) the defendant filed a motion to dismiss the information on the ground that the arrest under the bench warrant was invalid because the warrant violated the fourth amendment to the federal constitution; the motion was not denied until April 14, 1964. The jury returned verdicts and judgment of guilty on both parts; the defendant appealed. The Supreme Court of Connecticut considered the appeal, heard argument October 7, 1965, and decided the case November 9, 1965. The appellee filed a motion for reargument which was denied.

Legal Issues Presented

Whether an arrest under a bench warrant issued upon an information that was unsupported by oath or affirmation violates the fourth amendment as applied to the states by the fourteenth amendment.
Whether the defendant waived the right to challenge the validity of the bench warrant by failing to raise the Fourth Amendment challenge prior to entry of a plea of not guilty.

Arguments of the Parties

Appellant's Arguments

The bench warrant authorizing his arrest was issued on an information unsupported by oath or affirmation; this violated the fourth amendment requirement that "no warrants shall issue, but upon probable cause, supported by oath or affirmation."
The invalid bench warrant deprived the court of jurisdiction over his person and thus required dismissal of the information.
The motion to dismiss was filed promptly (two days after plea) and more than one month before trial commencement.

Appellee's Arguments

The state relied in part upon Hurtado v. California (as relied upon by the state) to support the legality of the arrest, although the opinion notes Hurtado was decided before Ker v. California and can no longer furnish support for the arrest's legality under the federal decisions applying the fourth amendment to the states.
The state made no claim that the defendant's arrest could be justified as valid without a warrant, and did not claim that facts other than those set forth in the information were submitted in support of the application for the warrant.
The state made no claim that the defendant consented or voluntarily submitted to the court's jurisdiction over his person; the burden of proving such consent was placed on the state.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Wolcott, 21 Conn. 272, 280	That a claim attacking the court's jurisdiction of the person should be raised prior to the entry of a plea of guilty or not guilty.	The court cited Wolcott for the general procedural principle that the challenge to jurisdiction of the person should be raised before plea; but applied it in context with other factors (timing of motion, state's failure to claim consent) to decline to find waiver as a matter of law.
Church v. Pearne, 75 Conn. 350, 355, 53 A. 955	Use of the language "voluntary submission" to describe consent to a court's jurisdiction over the person.	The court referenced Church v. Pearne to explain the concept of "voluntary submission" and to discuss when silence may constitute consent to in personam jurisdiction; nevertheless, it found no consent on this record.
Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752	Principle that an analogous rule about timely motions applies in civil cases, applied to criminal procedure as adaptable under the Practice Book.	Used to support the proposition that preliminary motions should ordinarily be filed prior to plea, as civil practice rules are made applicable to criminal cases insofar as adaptable.
State v. Hanna, 150 Conn. 457, 470, 191 A.2d 124	The burden is on the state to claim and prove that consent rendered lawful an otherwise illegal seizure of person or property.	The court applied this rule to hold that, because the state made no claim of consent, it could not be found as a matter of law that the defendant waived his constitutional right.
State v. Collins, 150 Conn. 488, 494, 191 A.2d 253	Similar principle regarding the state's burden to prove consent to an otherwise illegal seizure.	Reinforced the court's allocation of burden to the state on the question of consent/waiver.
State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480	Illustration of a case where a defendant with actual or constructive knowledge of a claimed defect remains silent until after trial commencement.	The court distinguished DeGennaro, noting this case was not one where the defendant remained silent until after trial commenced; here the motion was timely filed before trial.
Martyn v. Donlin, 151 Conn. 402, 409, 198 A.2d 700	Cited as an example of Connecticut law on arrests without warrant (context: state did not claim arrest could be justified as valid without warrant under our law).	The court noted the state did not rely on the authority of warrantless arrest cases such as Martyn v. Donlin to justify the arrest.
State v. Traub, 150 Conn. 169, 173, 187 A.2d 230	Another Connecticut case exemplifying the state's law on warrantless arrests (not relied on by state here).	Noted by the court as a case the state did not invoke to justify a warrantless arrest.
State v. DelVecchio, 149 Conn. 567, 573, 182 A.2d 402	Another example of Connecticut warrantless-arrest authority (not relied upon by the state).	Noted by the court to show the state did not claim the arrest was valid without a warrant.
United States v. Hughes, 311 F.2d 845, 846 (3d Cir.)	An example cited to show when an information used as an application for a bench warrant becomes subject to fourth amendment requirements.	Used in a parenthetical note to illustrate that an information, when used as the application for a bench warrant, may be subject to Fourth Amendment requirements.
Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726	Establishes that fourth amendment requirements as to issuance of warrants are applicable to the states through the fourteenth amendment.	Central to the court's incorporation analysis: the court relied on Ker to hold that state procedures must conform to federal fourth amendment warrant requirements.
Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505	Cited in support of the proposition that a state's attorney must submit facts, supported by oath or affirmation, from which a judge can determine probable cause.	The court cited Albrecht among authorities reinforcing the requirement that warrants issue only upon probable cause supported by oath or affirmation.
State v. DeNegris, 153 Conn. 5, 8, 212 A.2d 894	Referenced regarding the requirement that the judge be able to make an independent determination of probable cause and as a Connecticut precedent on related questions.	Cited to support the court's point about oath/affirmation and independent judicial determination; also cited later among cases on adequacy of facts.
Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232	Relied upon by the state (historically) to support arrest practices; the court notes Hurtado was decided before Ker and no longer furnishes support for the state's position.	The court rejected reliance on Hurtado, explaining it cannot support the legality of the defendant's arrest in view of later Supreme Court decisions applying the fourth amendment to the states.
Giordenello v. United States, 357 U.S. 480, 485, 78 S.Ct. 1245, 2 L.Ed.2d 1503	Establishes that the fourth amendment applies to arrest warrants as well as search warrants.	Used by the court to support the proposition that fourth amendment warrant safeguards are applicable to arrests.
Aguilar v. Texas, 378 U.S. 108, 112 n. 3, 84 S.Ct. 1509, 12 L.Ed.2d 723	Cited on the point that fourth amendment warrant principles apply and that arrest warrants fall within those protections.	Reinforced the court's conclusion that warrant issuance must meet fourth amendment standards.
Beck v. Ohio, 379 U.S. 89, 96 n. 6, 85 S.Ct. 223, 13 L.Ed.2d 142	Cited similarly for the proposition that fourth amendment protections extend to arrests.	Supported the court's view that constitutional safeguards applicable to seizures of property also apply to arrests of persons.
Jaben v. United States, 381 U.S. 214, 223, 85 S.Ct. 1365, 14 L.Ed.2d 345	One of the cases cited in relation to the adequacy of facts supporting probable cause (raised but not decided here because of the fatal defect).	Listed among authorities concerning adequacy of factual support for probable cause; the court did not decide questions that would require applying Jaben.
United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684	Cited regarding the rule for evaluating adequacy of recited facts to support probable cause.	Included among authorities on probable cause sufficiency; the court declined to decide adequacy issues in light of the lack of oath or affirmation.
Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159	Cited for principles concerning the adequacy of allegations supporting issuance of warrants.	Referenced as authority on probable cause content; not applied because the court found a more fundamental defect (lack of oath).
State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75	Cited among Connecticut cases on adequacy of facts supporting issuance of warrants.	Listed with other state cases; the court did not reach the adequacy question due to constitutional defect it found.
State v. Spellman, 153 Conn. 65, 70, 212 A.2d 413	Another Connecticut case cited in the discussion of adequacy of factual submissions for probable cause.	Cited but not analyzed because the court resolved the case on the lack-of-oath ground.
Hyde v. Hyde, 4 Conn. 117, 118	Historical Connecticut case cited in connection with discussion of whether the Connecticut constitution requires the same disposition.	Referenced when the court stated it was unnecessary to determine whether article first, 8 of the Connecticut constitution would require the same result.
Lowrey v. Gridley, 30 Conn. 450, 456	Another historical Connecticut case cited in the same context as Hyde v. Hyde.	Referenced in relation to the court's decision not to decide state-constitutional grounds.
Church v. Pearne, 75 Conn. 350, 354, 53 A. 955	Cited again among Connecticut precedents in relation to voluntary submission to jurisdiction.	Used to show related Connecticut precedent; the court did not find voluntary submission on this record.

Court's Reasoning and Analysis

The court began by acknowledging it had subject-matter jurisdiction over the charged offense. The defendant's attack was on the court's jurisdiction over his person, premised on the claim that his arrest was effected under a bench warrant issued upon an information unsupported by oath or affirmation.

Procedural waiver analysis:

The court recognized the general rule that a claim attacking jurisdiction of the person should be raised prior to entering a plea of guilty or not guilty (citing State v. Wolcott and analogous civil practice principles); failure to do so is strong evidence of consent or voluntary submission to the court's jurisdiction.
However, the court placed the burden on the state to claim and prove that any consent rendered lawful an otherwise illegal seizure (citing State v. Hanna and State v. Collins).
On the facts, the defendant entered a not guilty plea on March 3, 1964, filed a motion to dismiss on March 5, 1964, and the motion was filed more than a month before trial. The state made no claim of consent or voluntary submission. Given these facts, the court concluded it could not, as a matter of law on this record, find that the defendant had waived his constitutional right or voluntarily submitted to the court's in personam jurisdiction.

Substantive Fourth Amendment analysis:

The court held that through the fourteenth amendment the federal fourth amendment warrant requirements are applicable to the states (citing Ker v. California).
The court explained that the fourth amendment's provision that "no warrants shall issue, but upon probable cause, supported by oath or affirmation" requires a state's attorney applying for a bench warrant to submit facts, supported by oath or affirmation, from which a judge can make an independent determination that probable cause exists.
The state did not contend the arrest was valid without a warrant and did not claim any facts beyond those in the information were submitted in support of the warrant application.
Because the bench warrant here was issued upon an information unsupported by oath or affirmation, the court concluded the warrant failed to conform to federal constitutional requirements as established by the United States Supreme Court. The court characterized the warrant as fatally defective for that reason.
Given that fatal defect, the court did not decide other questions presented (such as the adequacy of the facts recited to establish probable cause) and did not need to decide whether the Connecticut constitution would require the same disposition.

Holding and Implications

Holding: The court held that the bench warrant was fatally defective because it was issued on an information unsupported by oath or affirmation and, consequently, the trial court erred in denying the defendant's motion to dismiss; the court concluded the motion to dismiss should have been granted for lack of jurisdiction of the defendant's person.

Implications:

Direct effect: The proceedings against the defendant should have been dismissed for lack of jurisdiction over his person because the arrest was made pursuant to a bench warrant that did not satisfy the fourth amendment requirement of being supported by oath or affirmation.
Broader issues: The court expressly declined to decide whether the same result would follow under article first, § 8 of the Connecticut constitution, and it did not address other claims about the sufficiency of facts supporting probable cause because the lack of oath or affirmation was dispositive.
No new state-constitutional rule was adopted; the decision is grounded on federal fourth amendment requirements as applied to the states via the fourteenth amendment.

This summary is strictly derived from the text of the provided opinion and does not add information beyond what the opinion contains.

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STATE OF CONNECTICUT v. JOSEPH LICARI

The defendant, two days after he entered a plea of not guilty, filed a motion to dismiss the information on the ground that his arrest under a bench warrant was invalid because the warrant violated the fourth amendment to the federal constitution. This claim should have been raised prior to the entry of a plea of guilty or not guilty. The state, however, made no claim that, by failing to file his motion prior to the entry of his plea, the defendant voluntarily submitted to the jurisdiction of the court over his person. Since the motion to dismiss was filed more than one month before the commencement of the trial and the state had the burden of claiming and proving consent to an otherwise illegal seizure of his person, it cannot be held as a matter of law that the defendant waived his constitutional right to question the validity of the bench warrant. The motion to dismiss was based on the claim that the arrest, which was made under the authority of a bench warrant issued without any facts, supported by oath or affirmation, from which the court or judge issuing the warrant could make an independent determination of probable cause, violated the defendant's rights under the fourth amendment to the federal constitution. The state did not claim that the defendant's arrest could be justified as valid without a warrant, or that facts, other than those set forth in the information, were submitted in support of the application for the warrant. By means of the fourteenth amendment, the federal constitutional safeguards, as to the issuance of warrants as interpreted by the United States Supreme Court, were made obligatory upon the states. The provision of the fourth amendment that "no warrants shall issue, but upon probable cause, supported by oath or affirmation" required a state's attorney applying for a bench warrant to submit facts, supported by oath or affirmation, from which a judge or court could make an independent determination that probable cause existed for the issuance of the bench warrant under General statutes 54-43. In the present case, the bench warrant was issued upon an information unsupported by oath or affirmation and hence failed to conform to federal constitutional requirements. Held that the court should have granted the defendant's motion to dismiss the information for lack of jurisdiction of the defendant's person. In view of the fatal defect of the bench warrant as stated above, the other claims of the defendant, including the claim that the warrant was invalid because of the failure adequately to submit facts from which the issuing judge could have made an independent finding of the existence of probable cause before issuing the warrant, are not decided. It was also not necessary to determine whether the same disposition of the case would have been required by article first, 8, of the Connecticut constitution.

KING, C.J.

The defendant was convicted of a violation of 53-298 of the General Statutes under each of two counts of the first part of the information. He was arrested under a bench warrant issued by a judge of the Superior Court upon an original information filed by the state's attorney. There is no claim that the procedure followed was not the usual Connecticut procedure and in strict conformity with 54-43 of the General Statutes, governing the issuance of bench warrants.

Rather, it is the defendant's claim that the statutory procedure is itself in violation of the fourth amendment to the constitution of the United States, which provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This claim attacks the court's jurisdiction of the defendant's person and, if sound, would require a judgment dismissing the case against him. It is a claim which should have been raised prior to the entry of a plea of guilty or not guilty. State v. Wolcott, 21 Conn. 272, 280. The judgment file recites the entry of a not guilty plea on March 3, 1964. A motion to dismiss on the ground of the invalidity of the arrest under the bench warrant was filed on March 5, 1964, but was not denied until April 14, 1964. Under modern criminal procedure, the failure to raise a claim of lack of jurisdiction of the person until after the entry of a plea of guilty or not guilty is strong evidence of a consent to the jurisdiction of the person or, to use the language of Church v. Pearne, 75 Conn. 350, 355, 53 A. 955, of a "voluntary submission" to the jurisdiction of the court over the person. An analogous rule applies in civil cases. Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752. Under 468 of the Practice Book the procedure in civil cases is made applicable, insofar as adaptable, to criminal cases. Pleadings in civil cases are to be filed as set forth in 74 and 75 of the Practice Book. From this it follows that any preliminary motion in a criminal case should be filed prior to a plea of guilty or not guilty, unless the grounds for the motion are not then known to, or reasonably ascertainable by, the accused. A specific application of this general rule in criminal cases is embodied in 495 of the Practice Book.

There is, of course, and could be, no question as to the jurisdiction of the court over the subject matter. General Statutes 54-17, 54-42.

The burden of claiming and proving, however, that consent rendered lawful an otherwise illegal seizure of person or property is on the state. State v. Hanna, 150 Conn. 457, 470, 191 A.2d 124; State v. Collins, 150 Conn. 488, 494, 191 A.2d 253. Here, the state has made `no claim of consent or voluntary submission to the jurisdiction of the court. The motion to dismiss was filed more than a month before the actual commencement of the trial. Thus, we do not have a case where a defendant, with actual or constructive knowledge of a claimed defect in the court's jurisdiction of his person, remains silent until after commencement of a trial on the merits. See cases such as State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480. Under all the circumstances, we cannot, as matter of law, on this record find consent to the arrest or a voluntary submission to the in personam jurisdiction of the Superior Court.

This brings us to the crux of the motion to dismiss. It is based on the claim that the federal constitution invalidates an arrest made under authority of a bench warrant where, as in this case, the warrant is issued without any facts, supported by oath or affirmation, from which the court or judge issuing the warrant can make an independent determination of probable cause. It should be noted that the state makes no claim that the defendant's arrest could be justified as a valid arrest without warrant under our law as set forth in cases such as Martyn v. Donlin, 151 Conn. 402, 409, 198 A.2d 700; State v. Traub, 150 Conn. 169, 173, 187 A.2d 230; and State v. DelVecchio, 149 Conn. 567, 573, 182 A.2d 402. Nor does the state claim that any facts were submitted in support of the application for the issuance of the bench warrant other than those set forth in the information. Thus, the first question is reduced to that of the validity, under federal constitutional requirements, of an arrest made pursuant to the authority of a bench warrant issued as was this one. If the lack of oath or affirmation is a fatal constitutional invalidity, it is unnecessary to consider the adequacy, as a statement of probable cause, of the facts recited in the application for the bench warrant, insofar as there was any application under the procedure followed in this case.

The constitutional requirements now under discussion of course do not affect the validity of the information prepared in accordance with 54-42, 54-44 and 54-46 of the General Statutes. It is only when, as here, the information is used as the application for the issuance of a bench warrant calling for the arrest of the accused that the information becomes subject to those fourth amendment requirements. See cases such as United States v. Hughes, 311 F.2d 845, 846 (3d Cir.).

Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states. Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726.

It is now established law that the fourth amendment applies to arrest warrants as well as to search warrants. Giordenello v. United States, 357 U.S. 480, 485, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Aguilar v. Texas, 378 U.S. 108, 112 n. 3, 84 S.Ct. 1509, 12 L.Ed.2d 723; Beck v. Ohio, 379 U.S. 89, 96 n. 6, 85 S.Ct. 223, 13 L.Ed.2d 142. Indeed, it is obvious that the amendment's reference to "persons . . . to be seized" is inapt to refer to anything other than a seizure of the person, which certainly is inclusive of an arrest. And on principle there would be no reason for throwing stringent constitutional safeguards around the seizure of property, while providing no similar safeguards around the seizure, i.e., arrest, of persons.

The provision of the fourth amendment that "no warrants shall issue, but upon probable cause, supported by oath or affirmation" clearly requires, inter alia, that a state's attorney applying for a bench warrant submit facts, supported by oath or affirmation, from which the judge or court can make an independent determination that probable cause exists for the issuance of the bench warrant under General Statutes 54-43. See cases such as Ker v. California, supra; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; State v. DeNegris, 153 Conn. 5, 8, 212 A.2d 894.

Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, relied upon by the state, was decided long before the United States Supreme Court held, in Ker v. California, supra, that the federal fourth amendment requirements as to the issuance of warrants are applicable to the states. Hurtado can no longer furnish support for the legality of this defendant's arrest.

While, as emphasized in Ker v. California, supra, 34, the states have latitude in developing workable procedures governing arrests, searches and seizures, these procedures must conform to fourth amendment requirements. This is true, of course, of proceedings under our bench warrant statute. 54-43. The bench warrant was issued for the arrest of the defendant upon an information unsupported by oath or affirmation. The warrant failed to conform to federal constitutional requirements as now established for all courts by the United States Supreme Court. Necessarily, it was fatally defective. It follows that the court was in error in failing to grant the motion of the defendant to dismiss the proceedings against him. Whether the same disposition would now be required by article first, 8, of the Connecticut constitution need not be determined. Compare Hyde v. Hyde, 4 Conn. 117, 118, Lowrey v. Gridley, 30 Conn. 450, 456, and Church v. Pearne, 75 Conn. 350, 354, 53 A. 955.

In view of this conclusion, we do not discuss the other claims of error, including the claim that the bench warrant was invalid because of the failure of the state's attorney, in the information or else where, adequately to submit facts from which the judge, before issuing the bench warrant, could make an independent finding of the existence of probable cause under the rule set forth in cases such as Jaben v. United States, 381 U.S. 214, 223, 85 S.Ct. 1365, 14 L.Ed.2d 345; United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684; Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; State v. DeNegris, 153 Conn. 5, 8, 212 A.2d 894. See also State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75; State v. Spellman, 153 Conn. 65, 70, 212 A.2d 413.

STATE v. LICARI