SEARCH AND SEIZURE; CONSTITUTIONAL LAW;

SEARCH AND SEIZURE;

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You asked for a summary of State v. Brocuglio, 264 Conn. 778, (2003) regarding the right of property owners to resist the government’s illegal entry into their homes to conduct warrantless searches.

SUMMARY

In a unanimous opinion penned by Justice Joette Katz, the state Supreme Court adopted a “new crime” exception to the exclusionary rule. The exclusionary rule bars the government from introducing at trial evidence obtained in violation of the protection against unlawful search and seizure guaranteed by the Fourth Amendment to the federal constitution (and Article 1, § 7 of the state constitution). The new crime exception prohibits the exclusion when the person seeking it commits a new, distinct crime that provides the police with independent grounds for a search or an arrest.

Although the Court found that the defendant’s conduct, which amounted to interference with a police officer in violation of state criminal law, constituted a new crime, it refused to apply the new crime exception retroactively. Applying existing law, the Court held the defendant had a common law right to resist an unlawful entry into his home by the police.

STATE v. BROCUGLIO

The defendant, Anthony Brocuglio, was convicted of two counts of interfering with a police officer for attempting to prevent two East Hartford police officers from entering his property without a warrant. The officers, acting on the request of the mayor, entered the defendant’s driveway and backyard to ticket unregistered and abandoned vehicles. The defendant, in an attempt to prohibit them, yelled profanities, threatened to let his dog go, and ultimately engaged in an altercation with the officers as they attempted to arrest him.

At his trial, the defendant attempted to suppress evidence of the condition of the vehicles and his actions towards the officers under the exclusionary rule. The trial court denied the motion to suppress and instead concluded that the defendant’s actions to keep the police from illegally entering his premises constituted a new, distinct crime that provided the police with independent grounds for arrest. The defendant appealed the conviction to the Appellate Court, which reversed, holding that the (1) trial court improperly denied the defendant’s motion to suppress evidence gathered during the warrantless entry and (2) defendant’s actions towards the police did not constitute a new, distinct crime.

The state Supreme Court agreed to hear the case to decide whether the Appellate Court properly concluded that the defendant’s conduct did not constitute a new, distinct crime outside of the protection of the exclusionary rule.

The state argued that the defendant’s conduct constituted a new crime subsequent to the unlawful police entry and that the Court should apply the new crime exception to the exclusionary rule adopted by may other jurisdictions. The defense contended that under State v. Gallagher, 191 Conn. 433, (1983) the defendant had a common law privilege to resist an illegal entry into his home, including his back yard, and therefore his actions did not constitute a new crime.

The Court adopted the new crime exception and overruled Gallagher to the extent that it conflicted with the new rule. However, the Court did not specify the scope and nature of permissible conduct under the new rule, opting instead to leave those issues to another day. The Court was persuaded to adopt the new crime exception by the rationale offered in a Seventh Circuit case. In United States v. Pryor, 32 F. 3d 1192, 1196 (7^th Cir. 1994), the U. S. Court of Appeals reasoned that the “gains from extending the [exclusionary] rule to exclude evidence of fresh crimes are small, and the costs high. If the rule were applied rigorously, suspects could shoot the arresting officers without risk of prosecution. An exclusionary rule that does little to reduce the number of unlawful seizures, and much to increase the volume of crime, cannot be justified. ” The state Supreme Court also pointed out that, from a public policy standpoint, issues arising from illegal entries are best remedied in the courtroom (e. g. , by invoking the protections of the exclusionary rule and filing a civil action for a declaratory judgment, injunctive relief, or damages in certain cases).

The Court remedied the conflict between the new crime exception and the common law privilege to resist an unlawful entry as set forth in Gallagher by modifying the scope of that ruling. In other words, the Court held the right to challenge an illegal entry remains a privilege, provided no new crime is committed.

Although the Court found that the defendant’s conduct constituted a new crime, it refused to apply the new crime exception to the present case because to do so would have violated the due process principle of fair warning. By adopting the new crime exception, the Court recognized its departure from numerous state appellate decisions upholding the common law right to resist an unlawful entry into one’s home was both “marked” and “unpredictable. ” The Court held that the defendant’s resistance to the police officers’ illegal entry, which did not amount to an assault, was well within his common law rights at the time the events occurred and thus affirmed the Appellate Court’s order reversing his conviction.

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