Connecticut’s death penalty remains abolished

Today, the Connecticut Supreme Court affirmed the abolition of the death penalty in this state, in an extremely contentious and hotly anticipated opinion in the matter of State v. Peeler.

In August 2015, the Court issued a divided 4-3 opinion, ruling that the legislature’s prospective abolition of the death penalty in 2012 rendered the death penalty unconstitutional as to all death row inmates and thus Connecticut could no longer have a death penalty.

A few months later, the State petitioned for reargument, which the Supreme Court denied. In another appeal pending at that time, State v. Peeler – also a death penalty case – the court did grant the State’s request for supplemental briefing and argument.

The crux of the State’s complaint – echoed by Santiago dissenters – was that the Supreme Court based its decision on matters that it did not have the opportunity to brief. This position was supported by some commentators and rejected by others.

The big question that everyone was waiting for an answer to was if the Court would quickly and summarily reverse itself on a major issue such as the death penalty and what that meant for stare decisis in Connecticut. If the Court reversed itself, and with the addition of a new member to the Court held the death penalty constitutional, would that violate the Eighth Amendment’s prohibition against arbitrary and capricious punishments?

Today, the Supreme Court answered all those questions. In a per curiam decision, the Court concluded that Santiago governed and that it should not be overruled. The fact that the majority opinion was per curiam should not fool anyone. There are 5 separate written opinions. The major question was the shuffling of votes and who would vote to do what.

Stare Decisis

Most notably, the Chief Justice, who voted to affirm the death penalty in Santiago, voted to affirm abolition today. Her change in vote was not driven by a sudden realization that the death penalty should be held unconstitutional, but rather her realization that a swift reversal of such a groundbreaking decision so quickly, and based solely on the change in the membership of the Court, would so untenably undermine the legitimacy of the rule of law in Connecticut:

When neither the factual underpinnings of the prior  decision nor the law has changed, “the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

Quoting Planned Parenthood of Southeastern Pa. v. Casey.

The Chief Justice correctly noted that the role of the Judicial Branch was to fashion a coherent jurisprudence that litigants and the citizens of the State could rely on. To so swiftly reverse itself on a matter of such critical importance would only serve to undermine its authority and legitimacy as the ultimate arbiter of the law.

Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.

Change in membership of the Court

The Chief, and many others, were concerned with the effect of reversal of Santiago solely because a new member was now on the bench. That new member is Justice Richard Robinson, who took over from Justice Norcott, who voted for – and always has – abolition. To have a vote on so critical an issue of public policy reversed in less than a year simply because one member of the Court is now different, would be the very definition of arbitrary and capricious. Justice Palmer, who authored the abolition decision in Santiago, said as much:

The state now proposes that we reauthorize the  death penalty and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different  result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 but to spare another, solely on the basis of the timing of their appeals.

The Chief Justice also noted that three of the Santiago bench were still on the bench when they heard Peeler (Palmer, McDonald, Eveleigh) and all three joined in an opinion today rejecting the State’s arguments. The fourth – Justice Norcott – was always opposed to the death penalty. Thus, the Chief Justice reasoned, had the State presented its arguments the first time around, the outcome would not have been different:

Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would have been no different. In fact, the only change that has occurred is a change in the makeup of this court, which occurred after oral argument in Santiago but before the decision was released.

To indulge the State and reverse Santiago solely because the makeup of the Court is different by one person is not only arbitrary and capricious, but also renders every opinion ever issued non-binding. All a party has to do is wait for a Justice to retire to re-litigate and rehash issues that were considered “settled.” The legitimacy of the law would never be able to survive such a regular assault.

Addressing the State’s complaints

Justice Palmer, who authored the decision abolishing the death penalty in Santiago, wrote a lengthy concurrence rejecting each argument made by the State. Most notably, he dispensed with the State’s underlying argument that the Supreme Court just did not have the authority to do what it did:

The state next argues that the death penalty can never be held unconstitutional because ‘‘it is expressly permitted by the Connecticut constitution.’’ … [T]he state recommends for our consideration a concurring opinion authored by Justice Antonin Scalia, who opines that ‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates.’’ (Emphasis omitted.) Glossip v. Gross, supra, 135 S. Ct. 2747 (Scalia, J., concurring). The dissenting justices in Santiago raised similar objections. See, e.g., State v. Santiago, supra, 318 Conn. 246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella, J., dissenting).

The state’s argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people as against the government. See State v. Conlon, 65 Conn. 478, 488–89, 33 A. 519 (1895); see also J. Blocher, supra, pp. 3, 8–9. For the state to suggest that one right (to be free from cruel and unusual punishment) bars the exercise of another right (presumably, to execute capital felons) is to fundamentally misunderstand the nature of the freedoms enshrined in article first. States have powers, and the people have rights vis-a`-vis the exercise of those powers; there is no governmental right to kill.

More damaging to the State, however, is Justice Robinson’s concurrence. Justice Robinson, the only member of the Court who did not opine on the constitutionality of the death penalty in Santiago, sided with abolition here on stare decisis grounds and much to the disappointment of some, on the grounds that Santiago properly reached and decided the issue of the constitutionality of the death penalty:

Specifically,  I have reviewed the opinions and briefs filed in Santiago, and determined that the majority in that case did not unreasonably read the record and the authorities when it concluded that: (1) the issues decided therein were raised by the parties, thus affording the state notice and an opportunity to brief them, had it elected to do so; and (2) the death penalty now is cruel and unusual punishment under our state’s constitution in the wake of the death penalty’s prospective repeal in No. 12-5 of the 2012 Public Acts.

In other words, Justice Robinson did not agree with the State’s position that the Santiago court exceeded its bounds, as suggested by the Santiago dissenters (including the Chief Justice) and some commentators. Also be sure to read footnote 1, which serves as a wonderful note in support of Justice Norcott and a firm rebuttal of some dubious allegations leveled against his continued participation in Santiago by some.

The end of death

Today, the Connecticut Supreme Court issued its opinion, re-affirming that the death penalty has no place in modern day Connecticut. We shall “no longer tinker with the machinery of death” and our standards of decency have evolved to the point where we no longer consider it humane to execute our fellow men.

That the Court had to do so while the State mounted an unprecedented assault on its legitimacy and its ability to perform its Constitutional function of ruling on the laws of our State will serve only to further strengthen the legacy of this institution and the confidence of our citizenry in the idea that our Court rules not with its heart, but with its intellect and serves not personal opinions, but rather the rule of law.

Foster v. Chatman and the necessity of peremptories

In 1986, the United States Supreme Court issued a groundbreaking decision, ruling that race could not be used as a factor in deciding who could be a juror in a criminal case.

In 1987, Timothy Foster was tried for capital murder, convicted by an all-white jury and sentenced to death.

In 2006, Foster’s lawyers make an Open Records request, asking for the prosecutors’ files. This is what they found:


If you can’t tell – or haven’t read any other stories about this – the prosecutors put a B next to each African-American and highlighted them in green.

Today, the United States Supreme Court, by a vote of 7-1, reversed Foster’s conviction, holding that the prosecutors’ tactics violated Batson. For a terrific breakdown of the lone dissenting vote and the increasingly passive-aggressive nature of SCOTUS, read this by Garrett Epps.

The decision is a condemnation of racial bias in jury selection – a practice that continues today – and perhaps a hint that some conservative members of the Court have dropped the pretense that racial bias in the criminal justice system is non-existent.

But while this decision points out all that is wrong with racial bias and tells us that it is unacceptable, it does nothing to provide any guidance how.

Many, including the inimitible Stephen Bright who represented Foster, have seized this opportunity to suggest one way to eliminate racial discrimination in jury selection:

“The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”

The idea behind Justice Marshall and Bright’s suggestion is that if there is no way for prosecutors to arbitrarily excuse people from jury service, then they can’t use that mechanism to arbitrarily excuse black people.

The idea has superficial appeal, but much like some other ideas for reforming the justice system, are counterproductive and downright dangerous when probed further.

As a practicing lawyer, peremptory challenges are a valuable if imperfect tool to weed out biased jurors who are smart enough to not divulge their biases. It allows both sides to decide that a particular individual, while giving the right answers, may not be sympathetic to their side and thus exercise a “challenge” to their suitability to be a juror.

Peremptories: imperfect but necessary

Obviously, nefarious and ill-meaning prosecutors have used this power to eliminate minorities and that is unacceptable. But prosecutors are also far more likely to be okay with picking the first 12 people that walk through the door. That’s because, as a society, we are far more deferential to the prosecution than the “criminals” who are accused of crimes. People are far more likely to be supportive of police and automatic believers in their veracity. People are far more likely to view defendants from urban settings more negatively.

People are also very unlikely to openly admit their biases in front of complete strangers. Jury selection – as it is permitted in most of the country – is extremely poorly equipped to uncover these biases. So lawyers are limited to several basic questions which are all poor clones of “can you be fair?” When a juror answers yes, despite every other fiber of their being giving off a signal that they absolutely will not be, there is nothing a lawyer can do but exercise that peremptory challenge and excuse them.

As any experienced trial lawyer will aver, even jurors who candidly admit their biases are routinely rehabilitated by the prosecutor or the judge and most are smart enough to take the obvious hints and bring their opinions back to the neutral middle. Without peremptories, a defendant would be stuck with an obviously biased juror who had the werewithal to follow the judge’s coaching that he would follow the judge’s coaching.


Fixing the problem of racial bias

Surprise, there’s no one paragraph solution to this problem. But the problem of racial bias is not limited to jury selection and any solution shouldn’t focus only on that. Prosecutors who engage in discriminatory selection don’t suddenly play fair during trial or during plea bargaining or during the signing of warrants. Bias during selection is indicative of bias throughout the process.

We need to tackle that – it’s a shift in mindset that is required in America. If we want to reduce bias, we need to hold prosecutors and judges accountable; appellate courts must make it less insurmountable for petitioners to prove bias and get relief; defense lawyers must not be afraid to challenge prosecutors and question their decisions; there must be greater diversity in the justice system, in prosecutor offices, public defender offices and on the bench.

We need our stewards of justice to realize that justice doesn’t mean winning – it means doing the right thing.


Utah v. Strieff and the importance of the exclusionary rule

The United States Supreme Court is currently pondering a case that may change the way modern America polices its communities. I realize that this is a pretty bold statement to make, especially in light of the ongoing conversation in America over the last year or two over policing standards especially in minority communities, but the impact of the decision in this case could be such that it will only further deepen the divide between police and the communities they serve.

The Exclusionary Rule

The case is Utah v. Strieff, in which the question the Justices are grappling with revolves around the application of the so-called ‘Exclusionary Rule.’ The Fourth Amendment protects us against unreasonable searches and seizures, but there’s no mechanism for enforcing that protection. The exclusionary rule is a

judicial remedy that gives life to that protection.

State v. Strieff, 357 P.3d 532, 538 (Utah 2015). It is the punishment imposed upon the Government for failing to abide by the restrictions of the Fourth Amendment. In simpler terms, evidence that is obtained in violation of the Fourth Amendment is not admissible at trial against an accused – thus the evidence is “excluded.” In deciding whether to exclude evidence illegally collected, courts apply the “fruit of the poisonous tree” doctrine: whether there is a causal link between the illegal police conduct and the evidence in question.

As the CT Supreme Court explained:

Thus, evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint…. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).” (Internal quotation marks omitted.) State v. Luurtsema, 262 Conn. 179, 189, 811 A.2d 223 (2002). In other words, “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

State v. Brunetti.

Applying the standard exclusionary rule in this case produces a simple result: Strieff was illegally stopped in his car and as a result of that illegal stop, the police discovered he had a warrant and arrested him. As a result of that arrest, they conducted a search of his person and found contraband.

There is the classic “but-for” connection: but for the illegal stop, they wouldn’t have found his warrant and wouldn’t have arrested him and wouldn’t have found the contraband.

Exceptions to the Rule

Now, there are three circumstances in which such evidence is nonetheless admissible: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception. It is this third exception that Utah relies on: the existence of a warrant is an intervening circumstance that renders the illegal stop irrelevant.

Courts across the country are divided on the issue and this is what the Supreme Court is asked to decide. But the issue runs deeper: as at least two commentators have noted, the future of the exclusionary rule may hang in the balance here.

Whether the court merely decides that the exclusionary rule does not apply when there is a legal warrant after an illegal Fourth Amendment event, or whether it goes further and erodes the protection of the exclusionary rule in all cases, the impact will be tremendous.

Impact on Policing

Just last week, Central Connecticut State University released its annual report on racial profiling in Connecticut. The news wasn’t much better than previous years:

But when researchers reviewed stops made during daylight hours, when they said officers could see the race and ethnicity of drivers, Hispanics were nearly 14 percent more likely to be pulled over and blacks were about 7 percent more likely to be stopped than they were at night.

The report also says minorities were more likely to get misdemeanor summons for speeding and other infractions, while whites were more likely to get written warnings.

And as last year’s report revealed:

The six-month data also showed that black and Hispanic motorists were at least twice as likely as a white motorist to be subjected to a consensual search, though the stops of white drivers were more likely to yield contraband.

And now the problems with any opinion in Strieff limiting the exclusionary rule or doing away with it become clear. If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the lack of an exclusionary rule – or the existence of a warrant as an intervening circumstance – would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

Finally, the CT Supreme Court recently approved of a stop and a search in a case where there was no suspicion of criminal activity at the time of the stop, but merely based on past observations. They also ruled:

Officer Lopa was approaching a person he knew to traffic in large quantities of marijuana and cash. Accordingly, it was reasonable to suspect that the defendant might be armed to safeguard the drugs and the cash.

Bolstered by the lack of an exclusionary rule, officers would have unfettered power to detain, search and investigate individuals in the absence of reasonable suspicion or probable cause. This, as the data bears out, would unfairly target minority communities, but would also render the protections of the Fourth Amendment nearly meaningless.


Momentum against warrantless drug-sniffing dogs?

Two weeks ago, the Connecticut Supreme Court heard oral argument in a case involving the police’s use of a drug-sniffing dog in an apartment hallway without getting a warrant first. I wrote a detailed review of the case over at CT News Junkie, in which I speculated that the court would likely rule against such uses of drug-sniffing dogs and why that would be the correct outcome.

It seems that I’m not alone in thinking so. Just today, the 7th Circuit Court of Appeals issued an opinion in an almost identical case, United States v. Whitaker. In that case the issue was the same: should warrantless use of a drug sniffing dog in an apartment hallway be permitted under the Fourth Amendment. The court emphatically said no, for two primary reasons.

Reasonable Expectation of Privacy. First, while not wading into the tresspass vs. reasonable expectation of privacy debate, the simply cites the concurrence in Jardines (which held such searches illegal in relation to a standalone home) and concludes that we all have a reasonable expectation of privacy in apartments and in a limited sense in the hallway outside an apartment door:

Whitaker’s lack of a reasonable expectation of complete privacy in the hallway does not also mean that he had no reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.

Whitaker’s lack of a right to exclude did not mean he had no right to expect certain norms of behavior in his apartment hallway. Yes, other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door.

Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean he could put a stethoscope to the door to listen to all that is happening inside.

Applied to this case, this means that because other residents might bring their dogs through the hallway does not mean the police can park a sophisticated drug-sniffing dog outside an apartment door, at least without a warrant. See Jardines, 133 S. Ct. at 1416.

Second, the Court recognized the arbitrariness in limiting Jardines to single family standalone homes:

First, there is the middle ground between traditional apartment buildings and single-family houses. How would courts treat a split-level duplex? Perhaps even one that had been converted from a house into apartments? Does the number of units in the building matter, or do all multi-unit buildings lack the protection Jardines gives to single-family buildings? And what about garden apartments whose doors, like houses, open directly to the outdoors?

In doing so, the Court also acknowledged the unfairness in drawing such a distinction because it would discriminate based on income, race and ethnicity. Poorer people are more likely to live in apartments and those who live in houses are more likely to be white. The Court correctly recognizes that the Fourth Amendment cannot be read to apply differently based on these factors.

Not the same as a car search. The other important point the Court noted is that this case is easily distinguishable from Illinois v. Caballes and United States v. Place. Both those cases are relied upon by the State to argue that there is no reasonable expectation of privacy in contraband. That’s a superficially appealing argument as I’ve said before, but the REP is is not in contraband, but in the place or item being searched – like a home. Both Caballes and Place deal with searches in public places, where there is a lesser expectation of privacy and thus those warrantless searches were legal, whereas the same search of a home would not be.

This is now the second court to rule in this fashion, after the Illinois Supreme Court in People v. Burns. Hopefully the Connecticut Supreme Court follows suit.


Remedies for prosecutorial intrusion in attorney-client privilege

Communications between a client and his attorney are regarded as privileged, which means that they are “permanently protected from disclosure,” unless waived by the client. The strong public policy rationale behind keeping communications confidential is to ensure full disclosure between an individual and his attorney. The importance of this privilege is why we sometimes tolerate uneasy outcomes.

But what happens when that privilege is pierced in a criminal case and that too, by the prosecution? What happens when the prosecution gains access to confidential documents and conversations between a criminal defendant and his lawyer in a pending case?

While most courts agree that invasion of this attorney-client privilege is “reprehensible” and “abhorrent”, three cases highlight the difficulty courts have in deciding what the appropriate remedy should be.

In State v. Taylor, a recent Indiana Supreme Court case:

The body of Brian Taylor’s girlfriend, Simone Bush, was found on March 14, 2014, just a few hours after Taylor was dropped off at a police station. Taylor’s attorney arrived shortly thereafter and began meeting with his client. Police told the attorney to flip a switch if he didn’t want the police listening to his conversation, but when he did he piped his conversation with his client into another room where many officers were listening. They heard the location of a handgun, among other details. Two days later, Taylor was charged with murder.

A prosecutor was also present and overheard the conversation between the two.

In State v. Winkler, a case out of Missouri, Jennifer Winkler was charged with manslaughter in the shaking death of an infant she was taking care of. Both she and her husband were represented by the same lawyer:

According to available court documents, defense attorneys alleged that prosecutors met with Steven Winkler and discussed trial strategy for his former wife’s defense that should have been protected by attorney-client privilege.

Steven Winkler knew the strategy because lawyer Neil Bruntrager not only represented Jennifer Winkler in the murder case but also represented both, before they were divorced, in an effort to retain custody of their children. Bruntrager remains Jennifer Winkler’s attorney but no longer represents her ex-husband.

Finally, in State v. Lenarz, a Connecticut case from 2011:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy…The state laboratory read and copied much of this material and transmitted it to the police department along with its report. In turn, the police department forwarded the materials and the report to the prosecutor…Although it is unclear from the record how long the prosecutor had been in possession of the privileged communications before the September, 2005 meeting, defense counsel represented at a hearing on a motion to suppress the materials seized under the search warrant that the prosecutor had had the materials for six weeks, and the prosecutor did not dispute this claim.


Rebuttable Presumption. The similaries in these cases go beyond the facts: all courts agree that when a governmental agency has committed such an intrusion, there is a strong presumption of prejudice and it is up to the government to prove that the prejudice can be overcome:

We agree with the courts that have held that the burden is not on the defendant to establish that he was prejudiced when the prosecutor has intruded on attorney-client communications that contain information concerning the defendant’s trial strategy. Rather, because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question.

State v. Lenarz. What differs among the courts is the standard by which the prosecution must overcome this presumption of prejudice. In Connecticut, the prosecution need only show by “clear and convincing evidence,” a burden higher than the civil “preponderance of evidence” but less demanding than “beyond a reasonable doubt”. The latter, which also applies to harmless error analysis is required by the Indiana Supreme Court in Taylor. So prosecutors in Indiana need to overcome a higher burden than prosecutors in Connecticut in proving that the defendant was not prejudiced by their intrusion in attorney-client privilege.

Remedy. Thus we get to the question of remedy. How is this violation of Constitutional rights to be vindicated? Most criminal defendants would want a dismissal of charges, but courts are loathe to sanction such a drastic remedy barring exceptional circumstances. The remedy also depends on the posture of a case. In Winkler above, the appeals court rejected her request for a dismissal, but granted her request to disqualify the prosecutor’s office. In Taylor, the trial judge ordered that the testimony of the police officers be suppressed and the physical evidence obtained as a result of the eavesdropping be suppressed as well. The Indiana Supreme Court reversed, stating that the prosecution had to have the opportunity to prove that the tainted evidence could have and would have been obtained in non-tainted ways. In Lenarz, the charges were dismissed, but only because it had been over a year and a half since the conviction and there was no way to effectively remedy the violation short of dismissal.

The problem with a lot of the remedies short of dismissal is that it is almost impossible to know the impact of the confidential information on police investigations and prosecution strategy. Even if a prosecutor swears that the information did not impact her decisions in any way, there is no reliable way to know that – information seeps into our brain and we can end up relying on it even subconsciously. If total dismissal is not the preferred remedy, then one could envision a regime where attorney-client communications are routinely monitored and the information gained therein is used to obtain other evidence through legal means. The privileged information would also drive trial strategy and provide the prosecution with access to the defenses that it ordinarily should not have.

If the attorney-client privilege is so sacrosanct and the cases above represent reprehensible violations of the right to counsel, then it should operate as does the exclusionary rule: a categorial bar that serves as a reminder to police and prosecutors that violations of the right to counsel cannot and will not be tolerated.


Should Administrative Warrants Be Legal?

The Supreme Court heard oral argument today in State v. Saturno, a case which involved the town zoning official obtaining an ex-parte warrant from a judge in order to enter a home suspected of violating zoning laws.

On appeal, the defendant argues that the search of his home was illegal because there is no statutory authority for an administrative search warrant, because there was no probable cause to support the warrant here, and because an administrative search warrant should not issue ex parte.  He claims that the legislature has yet to authorize an administrative warrant by statute, and he points out that the warrant here was obtained using a form that refers only to the criminal warrant statute, General Statutes § 54-33a.

As the Chief Justice aptly pointed out during argument, there are two issues:

  1. Is there any authority to issue administrative warrants, and
  2. If there is, what should be the procedure for issuing them

The state has indeed been pursuing administrative warrants at the legislature for years and for years (decades even?) they’ve been rebuffed, including this year.

In Saturno the police obtained an administrative warrant because they believed he had an illegal third apartment in his two-family home. When they entered – after breaking down a locked gate – they saw items they believed were part of an illegal pipe bomb making process. Based on that they obtained a criminal warrant and then found further illegal items and he was charged with several crimes.

The defendant argues in his brief that permitting such warrants violates the Fourth Amendment and the proper procedure is the one approved by our supreme court in Town of Bozrah v. Chmurynski. In that case, the court approved of an injunction which gives notice to the homeowner and an opportunity to contest the town’s desire to enter into the home. This would not be possible if administrative warrants were permitted, which would, in essence, allow criminal fact-finding investigations without a showing of probable cause that a crime has been committed.

In essence, the defendant argues that because the administrative process is far removed from a criminal investigation, it should not be treated as such. The policy reasons underlying the criminal warrant process – an ex-parte request, no opportunity by the subject to be heard, no notice – are not applicable when seeking to investigate a zoning violation and thus, the State’s interests aren’t so great that they outweigh an individual’s right to privacy in his home.

To be sure, general administrative searches are permitted under the Federal Constitution:

In the administrative context, on the other hand, the Supreme Court held in Camara v. Municipal Court, supra, 387 U.S. at 538-39, 87 S.Ct. 1727, that inspections that are part of a general administrative plan for the enforcement of a statutory scheme are reasonable within the meaning of the fourth amendment if “reasonable legislative or administrative standards for conducting an area inspection” demonstrate “a valid public interest.” (Emphasis added.) Particularized suspicion for choosing an individual residence within the area searched is unnecessary. Id., at 536, 538, 87 S.Ct. 1727.

In other words, probable cause to inspect a particular location may be based on a showing that the premises was chosen pursuant to a general administrative plan for the enforcement of a statute derived from neutral sources. Marshall v. Barlow’s, Inc., supra, 436 U.S. at 320-21, 98 S.Ct. 1816.

Bozrah. However, in Bozrah the court concluded that in order to conduct a particularized search for a specific home or individual, an injunction based on probable cause, issued by a neutral magistrate, after giving notice to the homeowner, is required.

Certainly situations like Saturno highlight the problem of permitting administrative warrants because they could end up being end runs around the probable cause requirement of warrantless searches. Town officials may, suspecting illegal activity, obtain administrative warrants to inspect the home for fire safety checks or other minor zoning violations and use that opportunity to enter the home in order to scope out other illegal activity whose fruits or instruments might be in plain sight.

If the concept that the home is a person’s castle is to be given any teeth – as with the drug-sniffing dog case from last week – police should not be permitted to enter a person’s home without probable cause and a warrant or some emergency situation to fulfill their caretaking function. An administrative warrant would provide another exception to that well-regarded requirement.