source: Caselaw Access Project

author: CALLAHAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CLARENCE GLENN
    (SC 15928)
    McDonald, C. J., and Borden, Norcott, Palmer and Callahan, Js.
    Argued September 22
    officially released December 7, 1999

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, senior assistant state’s attorney, for the appellee (state).
   Opinion

CALLAHAN, J.

The sole issue in this appeal is whether article first, § 7, of the Connecticut constitution permits a criminal defendant to bring a subfacial challenge to a warrant based solely on the alleged lack of veracity of an informant’s statements in an affidavit supporting an application for a search and seizure warrant. We conclude that it does not. The defendant, Clarence Glenn, was charged, by substitute information, with the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (a). Following the denial of his motion to suppress certain evidence that had been seized from his residence pursuant to a warrant, the defendant entered a conditional plea of nolo contendere. The trial court rendered a judgment of guilty thereon, and the defendant appealed to the Appellate Court, which affirmed his conviction. State v. Glenn, 47 Conn. App. 706, 707 A.2d 736 (1998).

The facts as stated in the Appellate Court’s opinion are as follows. “In response to a warrant application filed by Waterbury police, a search warrant was issued for the defendant’s residence, a second floor apartment at 44 Burton Street in Waterbury. In the affidavit supporting the warrant application, the affiants, two Waterbury police officers, alleged that they had probable cause to believe that there were narcotics at that location. A search warrant was issued by a judge of the Superior Court and executed by Waterbury police officers. During the search, the officers seized narcotics, money and drug paraphernalia. The officers arrested the defendant, who subsequently filed a motion to suppress the seized evidence, which motion included a request for a Franks [v. Delaware, 438 U.S. 154, 98 S. Ct, 2674, 57 L. Ed. 2d 667 (1978)] hearing. When the trial court denied that motion, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a and Practice Book § 4003 [now § 61-6], to an information charging him with possession of narcotics with intent to sell in violation of . . . § 21a-278 (a).” State v. Glenn, supra, 47 Conn. App. 707.

In support of his motion to suppress in the trial court, the defendant maintained that he had an alibi for the day on which he allegedly had sold narcotics to an informant during a controlled buy. The informant, known to be reliable, reported his purchase of narcotics from the defendant to the affiants, who included that information in their affidavit supporting the search warrant application.

The defendant’s motion, for purposes of this appeal, questions only the veracity of the informant. The defendant’s motion to suppress was accompanied by two affidavits. In one, Joseph Gallop claimed that on the date in question he and the defendant were in Virginia. In the other, Gaynell Hunt, the defendant’s sister, claimed that she, in Ohio, received two out-of-state collect calls from the defendant, one from Virginia on the date in question. With his motion the defendant also included two letters from Western Union indicating a money transfer from Hunt to someone with the defendant’s driver’s license in Virginia on the critical date. The defendant also provided a copy of Hunt’s telephone records.

We granted the defendant’s petition for certification to appeal, limited to the following question: “Did the Appellate Court properly conclude that, under article first, § 7 of the Connecticut constitution, in order for a defendant to secure a hearing regarding the veracity of an affidavit supporting a warrant, the defendant must make a showing of either intentional dishonesty or reckless disregard for the truth by an affiant, and that a showing that the informant gave materially false information is insufficient?” State v. Glenn, 244 Conn. 934, 717 A.2d 232 (1998). This appeal followed.

The standard currently applied in Connecticut to challenges directed to affidavits supporting warrant applications is the federal standard of Franks v. Delaware, supra, 438 U.S. 154. “In Franks v. Delaware, supra, 171, the United States Supreme Court held that the truth of an affidavit supporting a search warrant may be challenged at an evidentiary hearing when a satisfactory prehminary showing of deliberate falsity or reckless disregard of the truth on the part of the affiant has been made. State v. Morrill, 197 Conn. 507, 543, 498 A.2d 76 (1985); State v. Delmonaco, [194 Conn. 331, 334-35, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984)]; State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Just, 185 Conn. 339, 358, 441 A.2d 98 (1981); see Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964). If at such a hearing the allegation of falsity [by the affiants] is established by a preponderance of the evidence, and the remaining content of the affidavit is not independently sufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as when probable cause is lacking on the face of the affidavit. Franks v. Delaware, supra, 171—72.” (Emphasis added.) State v. Telesca, 199 Conn. 591, 604-605, 508 A.2d 1367 (1991).

Until today, we have not had occasion to consider directly whether our state constitution affords a criminal defendant greater latitude than the federal constitution in presenting a subfacial challenge to an informant’s veracity in a warrant application. After careful consideration, we are not persuaded that our constitution offers such sweeping protection.

“In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach) see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (‘Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.’); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn. Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut’s equal rights amendment was adopted); (3) federal precedent; see, e.g., State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (‘The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.’); (4) sister state decisions or sibling approach; see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. Westfarms Associates, [192 Conn. 48, 58-59, 469 A.2d 1201 (1984)]; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. Westfarms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A.265 (1938); and (6) economic/sociological considerations. See State v. Barton, [219 Conn. 529, 546, 594 A.2d 917 (1991)]; State v. Dukes, [209 Conn. 98, 115, 547 A.2d 10 (1988)]; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, ‘Connecticut’s Free Speech Clauses: A Framework and an Agenda,’ 65 Conn. B.J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, ‘State Constitutional Law: Federalism in the Common Law Tradition,’ 84 Mich. L. Rev. 583 (1986) (book review).” (Emphasis in original.) State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).

Article first, § 7, of our state constitution provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant . . . shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” We have often noted the textual similarity of article first, § 7, to the language of the fourth amendment to the federal constitution. State v. Miller, 227 Conn. 363, 381, 630 A.2d 1315 (1993). Construing that similar language, the United States Supreme Court concluded in Franks that the fourth amendment permits a defendant to challenge only “[t]he deliberate falsity or reckless disregard ... of the affiant, not of any nongovernmental informant.” (Emphasis added.) Franks v. Delaware, supra, 438 U.S. 171. Moreover, it is significant that, prior to Franks, this court read the text of article first, § 7, to provide no subfacial challenges at all.

Neither does the history of article first, § 7, lend credence to the defendant’s position. “[T]he sparse preconstitutional and early constitutional history of article first, § 7, would not support the conclusion that our state constitution mandated a stricter standard for the determination of probable cause than did the federal constitution.” State v. Barton, supra, 219 Conn. 538 n.4; see also W. Horton, The Connecticut State Constitution: A Reference Guide (1993).

Prior to the United States Supreme Court’s decision in Franks, Connecticut was one of eleven states that did not allow subfacial challenges of any kind to an affidavit supporting a warrant. Franks v. Delaware, supra, 438 U.S. 179-80; State v. Williams, 169 Conn. 322, 363 A.2d 72 (1975); State v. Anonymous (1973-6), 30 Conn. Sup. 211, 309 A.2d 135 (1973). In Williams, this court limited the inquiry to “the reasonableness of the magistrate’s belief at the time he acts upon the information, not the ultimate truth or falsity of the information.” (Internal quotation marks omitted.) State v. Williams, supra, 328. The subsequent line of cases presenting subfacial challenges to warrants have limited their scope to the confines of Franks. State v. Dolphin, 195 Conn. 444, 458, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Simmons, 10 Conn. App. 561, 524 A.2d 669, cert. denied, 203 Conn. 811, 525 A.2d 524 (1987); State v. Durepo, 37 Conn. Sup. 901, 443 A.2d 493 (1982).

The majority of state and federal courts also limit subfacial challenges to the veracity of the affiant. United States v. Procopio, 88 F.3d 21 (1st Cir. 1996); United States v. McAllister, 18 F.3d 1412 (7th Cir. 1994); United States v. Perdomo, 800 F.2d 916 (9th Cir. 1986); Jensen v. State, 482 A.2d 105 (Del. 1984); State v. Peightal, 122 Idaho 5, 830 P.2d 516 (1992); State v. Mosley, 412 So. 2d 527 (La. 1982); State v. Hamel, 634 A.2d 1272 (Me. 1993); State v. Stickelman, 207 Neb. 429, 299 N.W.2d 520 (1980); State v. Valenzuela, 130 N.H. 175, 536 A.2d 1252 (1987), cert. denied, 485 U.S. 1008, 108 S. Ct. 1474, 99 L. Ed. 2d 703 (1988); State v. Cervantes, 92 N.M. 643, 593 P.2d 478, cert. denied, 92 N.M. 621, 593 P.2d 62 (1979); People v. Bradley, 181 App. Div. 2d 316, 586 N.Y.S.2d 119, appeal dismissed, 81 N.Y.2d 760, 610 N.E.2d 394, 594 N.Y.S.2d 721 (1992); State v. Esplin, 314 Or. 296, 839 P.2d 211 (1992) (en banc); Commonwealth v. Bradshaw, 290 Pa. Super. 162, 434 A.2d 181 (1981); Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980); Davis v. State, 859 P.2d 89 (Wyo. 1993). To date, Colorado is the only jurisdiction that allows a subfacial challenge to the veracity of an informant in a warrant affidavit pursuant to its state constitution. People v. Nunez, 658 P.2d 879 (Colo. 1983) (en banc); People v. Dailey, 639 P.2d 1068 (Colo. 1982) (en banc).

Furthermore, we can see little logic or benefit that would result from rejecting the traditional contours of the Franks rule under the Connecticut constitution. First, the deterrent effect of the exclusionary rule is not served by permitting a challenge based on an informant’s false statements. “[T]he purpose of the exclusionary rule is to deter illegal police conduct; see State v. Brown, 14 Conn. App. 605, 622, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); and the limits on its application . . . flow from that purpose, namely, that it does not apply where the cost of suppressing reliable tangible evidence outweighs its deterrent benefit; see United States v. Leon, 468 U.S. 897, 906-907, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S. Ct. 52, 82 L. Ed. 2d 942 (1984) . . . .” State v. Middleton, 20 Conn. App. 321, 329, 566 A.2d 1363 (1989). No deterrent effect exists where both the police and the magistrate perform their functions in reasonable reliance on the veracity of an informant’s information in an affidavit.

Moreover, allowing a challenge to any possible subfacial falsehood in an affidavit flies in the face of probable cause as it is commonly understood. Probable cause is determined by objectively considering what is known to the state at the time a warrant is presented to a magistrate; it does not require the accuracy presented by hindsight. Inherent in the concept of probable cause is that the factual basis of a warrant may be inaccurate. The factual basis for probable cause should “be ‘truthful’ in the sense that the information put forth is to be believed or appropriately accepted by the affiant as true.” Franks v. Delaware, supra, 438 U.S. 165. “[It] does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.” Id.

This does not mean, however, that probable cause lacks substance. “Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed .... State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990).” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 514 S. Ct. 1404, 131 L. Ed. 2d 291 (1995).

Insisting on complete factual truthfulness in a warrant negates probable cause and would result in a Catch-22 situation. The police would be required to conduct virtually a complete investigation and present the magistrate with a confirmed, absolutely true affidavit before a valid warrant could be issued, but such a complete investigation would be nearly impossible without a warrant. Our search and seizure clause recognizes both the legitimate need of law enforcement officials to conduct investigations and the privacy interest of individuals. As one leading commentator has noted, “the fourth amendment has been read not to proscribe ‘inaccurate’ searches, but rather only ‘unreasonable’ ones. And a warrant based on information which the affiant and the magistrate both had reasonable grounds for believing is a reasonable one. To require agents to ‘know’ facts that they cannot reasonably be expected to know would not deter any searches, since the agents must work with the reasonably believable evidence before them. Such a rule would also allow at least some defendants to escape otherwise certain conviction merely because the police cannot operate with perfect knowledge in every case.” S. Kipperman, “Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence,” 84 Harv. L. Rev. 825, 832-33 (1971). We find this reasoning to be equally applicable to article first, § 7, of our state constitution.

If the police could verify the absolute truth of everything in a warrant affidavit, there would be little need for a warrant in the first place or indeed for any further investigation. The concept of “probable cause” and reasonable searches and seizures cannot be understood except as addressing this investigative dilemma. “[G]ood faith errors cannot be deterred . . . [and] do not negate probable cause. If an agent reasonably believes facts which on their face indicate that a crime has probably been committed, then even if mistaken, he has probable cause to believe that a crime has been committed.” United States v. Carmichael, 489 F.2d 983, 988-89 (7th Cir. 1973) (en banc).

The court in Franks also expressed a concern for the increased pretrial litigation that might result from subfacial challenges to warrants. Franks v. Delaware, supra, 438 U.S. 170. This concern has been echoed in Connecticut. See State v. Anonymous (1973-6), supra, 30 Conn. Sup. 230, citing State v. Petillo, 61 N.J. 165, 177, 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973). It makes little sense to increase the workload and delay in an already busy system by allowing challenges to errors that are beyond the state’s control and that do not address the case’s ultimate merits. See State v. Anonymous (1973-6), supra, 230.

We conclude, therefore, that the federal standard for challenging a warrant affidavit set forth in Franks v. Delaware, supra, 438 U.S. 154, is the standard to be applied under article first, § 7, of our state constitution. Accordingly, the trial court properly denied the defendant’s motion to suppress.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 21a-278 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The defendant had previously argued, in the Appellate Court, that the affiants themselves had included false statements in their affidavit knowingly or with reckless disregard for the truth. That contention is not part of this certified appeal.

       We did not reach this identical issue in State v. Delmonaco, supra, 194 Conn. 336, because, having been raised for the first time on appeal, it was not properly before the court.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

       We reject the defendant’s contention that our decision in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990), requires by logical necessity an extension of Franks. See E. Mascolo, “Controverting an Informant’s Factual Basis for a Search Warrant: Franks v. Delaware Revisited and Rejected Under Connecticut Law,” 15 Quinnipiac L. Rev. 65 (1995). Specifically, the defendant argues that our rejection of the good faith exception to the exclusionary rule in the Marsala context necessitates our rejection of the Franks rule, whereby only intentional or reckless misstatements by the affiant are open to challenge. This argument misapprehends Marsala and the purpose of the exclusionary rule.
      In Marsala, we declined to follow United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and concluded that no good faith exception to the exclusionary rule exists under Connecticut law. Unlike the situation here, both Marsala and Leon presume a facially invalid search warrant. See State v. Delmonaco, supra, 194 Conn. 334 n.4. Both presume good faith on the part of the police. Crucially, however, both also presume that a magistrate improperly found probable cause and in so doing improperly placed the imprimatur of the state upon the warrant.
      The defendant presents an entirely different set of circumstances. The challenged warrant is facially valid. The affiant-officers reasonably presented to a neutral magistrate facts that on their face constitute probable cause for the issuance of the warrant.

       It appears that Montana may now also permit such challenges. State v. Worrall, 293 Mont. 439, 447, 976 P.2d 968 (1999). The defendant in Worrall claimed that the affiant, had inaccurately described the informants’ statements in his warrant affidavit. The court concluded, sua sponte and contrary to fifteen years of precedent; see id., 456 (Gray, J., concurring and dissenting); that a defendant need not show knowing, intentional or reckless disregard for the truth on the part of the affiant. Therefore, although Worrall did not present the precise issue raised here, it appears that Montana may now allow subfacial challenges to the veracity of an informant’s statements in a warrant affidavit.


author: PETERS, J. NORCOTT, J.,

text:
    STATE OF CONNECTICUT v. MICHAEL B. ROSS
    (SC 16124)
    (SC 16135)
    Norcott, Sullivan, Peters, Callahan and Schaller, Js.
    Argued October 14
    officially released December 14, 1999

      Kenneth Rosenthal, special public defender, and Mark Rademacher, assistant public defender, with whom, on the brief, were Karen Goodrow and Barry

      Butler, assistant public defenders, for the appellant in Docket No. 16124, appellee in Docket No. 16135 (defendant).

      Michael E. O’Hare, assistant state’s attorney, and Timothy J. Sugrue, senior assistant state’s attorney, with whom were Kevin T. Kane, state’s attorney, and, on the brief, Susan C. Marks, supervisory assistant state’s attorney, for the appellee in Docket No. 16124, appellant in Docket No. 16135 (state).
   Opinion

PETERS, J.

In State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), this court held that, as a result of an improper evidentiary ruling, the defendant, Michael B. Ross, was entitled to a new penalty hearing to determine whether the state was entitled to exact the ultimate penalty of death. The present appeal raises two issues. The first issue is a question of statutory construction relating to General Statutes § 53a-46a (c). That issue is whether, despite the unambiguous language of the statute, the state is bound by the ordinary rules of evidence in its rebuttal of the defendant’s claim of mitigation. The second issue is a question of constitutional law that turns on the resolution of a question of fact: did the state, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), suppress exculpatory information at the time of the defendant’s original trial so that the defendant is now entitled either to a new guilt phase trial or to the preclusion of a second penalty phase trial. We decide both issues in favor of the state, and accordingly direct that proceedings for a second penalty phase hearing go forward forthwith.

The facts underlying this appeal were fully recited in our earlier opinion. State v. Ross, supra, 230 Conn. 191-92. At his trial, the defendant did not deny that, in violation of General Statutes § 53a-54b (5) and (7), he had sexually assaulted, kidnapped and murdered four teenaged girls in eastern Connecticut in 1983 and 1984. Id., 192. His defense was insanity, a defense that the jury rejected by returning a verdict of guilty of six counts of capital felony. Id. We affirmed the defendant’s convictions in their entirety. Id., 228-29, 286. Nonetheless, we held that the defendant was entitled to a new penalty phase hearing because the trial court improperly had deprived him of the opportunity to present evidence of mitigating circumstances arising out of his alleged mental illness. Id., 286.

The evidence that had been at issue in the penalty phase hearing was twofold. “[T]he trial court [Ford, J.] precluded the defendant from submitting to the jury: (a) a letter written by Robert Miller, a court appointed psychiatric expert who had evaluated the defendant for the state, which reflected the fact that [Miller] had changed his position about the mitigating role of the defendant’s psychopathology; and (b) a report by Miller, which reflected his corroboration of the diagnosis of the defendant contained in the reports of defense psychiatric experts.” Id., 267.

We concluded in State v. Ross, supra, 230 Conn. 268, that § 53a-46a (c) permitted the defendant to introduce this evidence even though, under other circumstances, it might have been excludable as hearsay. “The statute plainly provides that, in a penalty hearing conducted pursuant to § 53a-46a, ‘[a]ny information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters . . . .’ (Emphasis added.) On its face, this language authorizes a judge presiding over a penalty hearing to exclude mitigating evidence only on the basis of a lack of relevancy.” (Emphasis in original.) Id. We concluded that these documents had been excluded improperly because they were relevant to the defendant’s claim of the existence of mitigating factors that could counsel against the imposition of the death penalty. Id., 271^ We therefore remanded the case for a new penalty phase hearing. Id., 273.

For reasons that the record does not fully disclose, the parties returned only recently to the trial court to prepare for the new penalty phase hearing that we had ordered in 1994. In the course of that preparation, the defendant filed the motions that are currently at issue.

The defendant filed a motion in limine to restrict the state to the normal rules of evidence with respect to any evidence that the state might offer to rebut mitigation. The trial court, Miaño, J., granted the defendant’s motion. It concluded that the defendant’s constitutional right to due process required a construction of § 53a-46a (c) that would afford the defendant the broadest possible latitude to establish mitigation. On this ground, the court ruled that any evidence presented by the state to rebut mitigation at the penalty phase hearing would have to be admissible under the normal rules of evidence rather than under the relevancy standard alone as contained in § 53a-46a (c) and explained in our earlier opinion. The state appeals from that ruling. We agree with the state that the statute requires a result contrary to that reached by the trial court.

The defendant also filed a renewed motion to compel the state to disclose any exculpatory information in its possession. As a result, the defendant obtained copies of contemporaneous notes made by former New London state’s attorney C. Robert Satti, Sr., concerning his conversations with Miller before the original trial. Alleging that these copies should have been disclosed earlier, the defendant then moved, in the alternative, either for a bar to further prosecution or for a new trial. Finding that there had been adequate oral disclosure before the original trial, the trial court, Miaño, J., denied the defendant’s request to bar the penalty phase hearing and declined to order a new guilt phase trial. Instead, the court directed the parties to proceed to the penalty phase hearing. The defendant appeals from those rulings. We are not persuaded by the defendant’s challenge to the facts found by the trial court.

I

THE STATE’S APPEAL

The state’s appeal requires us to reexamine the text and the context of § 53a-46a (c). As the defendant concedes, read literally, the statute allows “[a]ny information relevant to any mitigating factor [to] be presented by either the state or the defendant, regardless of its admissibility under the rales governing admission of evidence in trials of criminal matters . . . .’’(Emphasis added.) General Statutes § 53a-46a (c). The state urges us to accept this literal reading and to allow it, like the defendant, to introduce hearsay testimony that otherwise might be inadmissible. The defendant argues, as the trial court held, that we must excise the statutory reference to “the state” in order to comply with federal constitutional mandates arising out of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and its progeny.

Because the issue raised by the state concerns the construction of a statute, we have plenary authority to review the trial court’s limiting construction. State v. King, 249 Conn. 645, 681, 735 A.2d 267 (1999); State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997). In this case, because we are persuaded that the text of the statute embodies its purpose and its agenda, we conclude that the defendant’s argument is unavailing.

Perhaps in recognition of the difficulties inherent in the type of judicial surgery implicated by his substantive argument, the defendant urges us not to reach the certified issue in advance of the conclusion of the penalty phase hearing that has been ordered. He notes that it is uncertain, at this juncture, what mitigating evidence will be presented by the defendant and what rebuttal evidence the state may seek to introduce.

The considerations to which the defendant refers undergird our reluctance, as a general matter, to entertain interlocutory appeals. See Cantoni v. Xerox Corp., 251 Conn. 153, 159, 740 A.2d 796 (1999). Pursuant to General Statutes § 52-265a, however, the chief justice may certify that a substantial public interest in the expeditious resolution of some issue or issues warrants the immediate review of rulings that might otherwise have to await a final judgment at trial. That certification having been made in this case, it would serve no purpose now to remand for further penalty phase proceedings under the cloud of uncertainty that the certification was intended to dispel.

Indeed, as the state noted at oral argument in this case, in the absence of a certified appeal, the state never would have the opportunity to obtain appellate review of a trial court ruling restricting its evidentiary options at the penalty phase hearing of a capital case. If the trier were to conclude that the defendant had proved mitigation, the principles of double jeopardy would bar the state from appealing from a penalty phase judgment. State v. Daniels, 207 Conn. 374, 397, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). If the trier were to find to the contrary, the state would be hard put to demonstrate aggrievement. The construction of the provisions of a death penalty statute should not be left in the unreviewable discretion of the trial court.

Turning then to the merits of the defendant’s argument, we conclude that § 53a-46a (c) should be applied as written. The defendant cannot succeed in his argument that the constitutional demand for individualized sentencing requires a distinction between the evidentiary rules concerning the admissibility of aggravating evidence and the admissibility of mitigating evidence. The statute makes precisely that distinction, and requires the state to follow the ordinary rules of evidence when proving aggravating factors. The issue before us relates only to the state’s ability to rebut potentially mitigating evidence.

The defendant fears that a penalty phase fact finder improperly may use derogatory evidence offered by the state in rebuttal of mitigation as a backup to assist the state in carrying its burden of proof of aggravation in accordance with the ordinary rules of evidence. An appropriate charge by the trial court can minimize that risk without depriving the state of an evenhanded opportunity to cast doubt on questionable evidence of mitigation. In State v. Ross, supra, 230 Conn. 270-71, we expressly recognized that, although relevance was the proper point of departure for determining statutory admissibility, a trial court would continue to have the authority to preserve the integrity of the proceeding before it. That authority necessarily encompasses the duty to exclude evidence that, although relevant, is, for example, too prejudicial to be admissible or that is cumulative of evidence previously introduced. Having the authority to make such an exclusionary ruling, the trial court indubitably also has the authority to instruct the fact finder about the limited uses to which admissible evidence properly may be put. Contrary to the defendant’s assertion, therefore, a literal reading of the statute does not divest a trial court of its traditional authority and obligation to exclude unreliable and unduly prejudicial evidence. As we read the statute, the trial court continues to be charged with the responsibility of minimizing the risk of fact finder confusion between evidence with respect to mitigation and evidence with respect to aggravation.

The defendant is equally mpersuasive when he argues that a literal reading of the statute unconstitutionally mdermines the reliability of the capital sentencing process in its entirety. Concededly, such reliability requires that the sentencer have access to all relevant mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). We fail, however, to see how that requirement is diluted by a statute allowing the state the same latitude to challenge mitigation evidence as the defendant is afforded to present such evidence. To the extent that the Supreme Court of the United States has spoken on this issue, its holdings support the constitutionality of the statute as drafted. In Romano v. Oklahoma, 512 U.S. 1, 10, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994), the court stated that the fact that “evidence may have been irrelevant as a matter of state law, however, does not render its admission [on the issue of mitigation] federal constitutional error.” Subsequently, in Buchanan v. Angelone, 522 U.S. 269, 276, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998), the court observed that “[i]n the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. . . . However, the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. . . . Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.” (Citations omitted.) See also Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). In the absence of a presentation of authority to the contrary by the defendant, he cannot succeed in his argument that constitutional considerations require a departure from the literal language of § 53a-46a (c).

In sum, we are not persuaded that the legislature departed from the governing federal constitutional norms in enacting § 53a-46a (c). The defendant has pointed to no federal precedent requiring the state to shoulder a higher evidentiary standard to rebut the existence of a mitigating factor than the defendant must satisfy to carry his burden of proof. Displacement of the ordinary rules of evidence does not preclude a trial court, guided by principles of sound judicial administration, from making the otherwise appropriate rulings that are necessary to assure a fair penalty phase hearing.

II

THE DEFENDANT’S APPEAL

The defendant’s appeal invokes the disclosure requirements of Brady v. Maryland, supra, 373 U.S. 87, and its progeny. The defendant contends that the state failed to turn over to him certain exculpatory materials, and that this failure entitled him either to a bar on further prosecution, or, in the alternative, to a new trial. We disagree.

Certain additional facts are necessaiy to the resolution of this issue. Prior to the commencement of the defendant’s trial in 1987, Miller, the psychiatric expert employed by the state, examined the defendant. Subsequent to the examination, Miller issued a report in which he diagnosed the defendant as a sexual sadist, but concluded that the defendant was not legally insane. Eight months after his examination of the defendant, however, in a letter to Satti, the prosecutor handling the case, Miller expressed his doubts about “how I could testify against psychopathology playing a sufficient role in [the] defendant’s behavior to mitigate the type of penalty.” Both Miller’s report and his letter to Satti were disclosed to the defendant at the time of his trial.

In two telephone conversations following Satti’s receipt of Miller’s letter, Satti and Miller discussed the defendant’s case and Miller’s diagnosis of the defendant’s mental condition. The only record of those conversations was a set of handwritten notes made contemporaneously by Satti. After Satti and Miller had spoken for the second time, Satti held a series of meetings with the defendant’s attorneys, at which Satti allegedly made an oral disclosure of the contents of his notes of the two conversations with Miller.

On April 15,1999, prior to the start of the defendant’s second penalty hearing, the state provided the defendant with written copies of Satti’s notes. The defendant thereafter made a motion to bar further prosecution, pursuant to our holding in State v. Colton, 234 Conn. 683, 692, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996), or, in the alternative, for a new trial. The defendant claimed that Satti had not disclosed the contents of his notes at the time of the first trial, that the notes were exculpatory information within the purview of Brady, and that Satti’s earlier failure to turn over the notes constituted misconduct sufficient to bar further prosecution pursuant to the Colton doctrine.

The trial court concluded that although the information contained in Satti’s notes was exculpatory within the meaning of Brady, that information “was in fact disclosed to the defense . . . .” On the basis of this factual finding, the trial court held that the defendant “failed in [his] burden to prove the nondisclosure of exculpatory information relevant to the Brady claim of a violation of the right to a fair trial. [The defendant] failed [therefore] to prove prosecutorial misconduct relevant to the claim of a violation of the double jeopardy protections.” Accordingly, the trial court denied the defendant’s motion to bar further prosecution, and ordered that the case proceed to a penalty hearing.

On appeal, the defendant claims that the trial court improperly found that the state disclosed the contents of Satti’s notes prior to trial. The defendant argues that he is entitled, therefore, to an opportunity to pursue further his motion to bar further prosecution, or, in the alternative, to a new trial.

A

The parameters of the state’s duty to disclose exculpatory information to a defendant are well established. “In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material. State v. White, 229 Conn. 125, 134-35, 640 A.2d 572 (1994); Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988).” (Internal quotation marks omitted.) State v. Esposito, 235 Conn. 802, 813, 670 A.2d 301 (1996).

Our resolution of the defendant’s Brady claim comprises two separate inquiries: (1) whether, as a factual matter, the information in question actually was disclosed to the defendant, and (2) whether, if the information in question was not disclosed, as a legal matter, it was both exculpatory and material within the meaning of Brady and its progeny. State v. Santiago, 245 Conn. 301, 311, 715 A.2d 1 (1998). We conclude that the trial court’s finding that the information at issue in this case was disclosed to the defendant was not clearly erroneous, and, further, that the information itself was not material as that term has been defined in the Brady context.

B

The trial court concluded that the state had disclosed the contents of Satti’s notes to the defendant prior to his 1987 trial. It is undisputed that whether such disclosure actually took place is a question of fact. As such, our review of that question is subject to well established guidelines. “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, U.S. , 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . State v. Hodge, 248 Conn. 207, 218-24, 726 A.2d 531 (1999).” (Internal quotation marks omitted.) State v. King, supra, 249 Conn. 660.

Our review of the entire record in this case compels the conclusion that the trial court’s finding of an oral disclosure by Satti of the contents of the notes was not clearly erroneous. The meeting at which Satti allegedly read the contents of his notes to the defendant’s attorneys took place on March 18, 1987. Four persons were present at that meeting: Satti, the defendant’s two attorneys, and Inspector Thomas Viens. All four testified at the hearing held by Judge Miaño. The trial court found that of the four persons present at the March 18 meeting, only Satti and Viens took notes of what transpired. It was the regular practice of both Satti and Viens to make “notes of conversations and meetings with others contemporaneously in order to memorialize that which was said or that which transpired.” The notes taken by Satti and Viens at the March 18 meeting contain clear references to an oral disclosure to the defendant’s attorneys of the contents of Satti’s earlier notes of his conversations with Miller.

The trial court also considered the testimony of the defendant’s attorneys. In contrast to Satti and Viens, the defendant’s attorneys “testified that they [did] not recall the contents of the Satti notes being imparted to them at the first trial.” The defendant’s attorneys testified further, and the defendant claimed at oral argument before this court, “that the information in the Satti notes was of such significance that they would have recalled it, had it been disclosed in 1987.”

Any resolution of the discrepancy between the testimony of Satti and Viens that an oral disclosure was made, supported by their notes of the March 18 meeting, and the lack of recollection on the part of the defendant’s attorneys of such a disclosure, depends ineluctably on an assessment of their relative credibility. “[W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999). “The determination of a witness’ credibility is the special function of the trial court.” (Internal quotation marks omitted.) State v. Daniels, 248 Conn. 64, 77, 726 A.2d 520 (1999).

After hearing the testimony of all four persons present at the March 18 meeting, and after carefully reviewing the notes taken at that meeting by Satti and Viens, the trial court found that “the Satti-Viens notes of meetings held are authentic and accurate. Accordingly, the notes corroborate, to a significant degree, the testimony of [Satti and Viens]. This corroboration compels this court to give greater weight to the testimony of Satti and Viens relevant to disclosure.” This determination of credibility is precisely the type of finding that rests within the unique province of the trial court, and is one that we do not disturb in the absence of a finding of clear error. As no such impropriety is evident from the record, we decline to disturb the trial court’s determination that an oral disclosure was made.

c

Even were we to conclude that the state did not disclose the contents of Satti’s notes, that suppression would not constitute a Brady violation. The second and third prongs of the Brady standard require that the information sought be not only exculpatory, but also material to the question of guilt or innocence. State v. Esposito, supra, 235 Conn. 813. We conclude that the information at issue in this case was not material, as that term has been defined in the Brady context.

In United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the United States Supreme Court defined materiality, for Brady purposes, as “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” In a recent exposition of Brady doctrine, the Supreme Court discussed several “aspects of materiality under Bagley [that] bear emphasis.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Most significantly for our purposes, the Kyles opinion noted that “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. . . . We have never held that the Constitution demands an open file policy . . . .” (Citations omitted.) Id., 436-37. The key question that we must ask whenever a Brady violation is alleged “is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Emphasis added.) Id., 434; see Strickler v. Greene, 527 U.S. 263, 289-90, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) (reaffirming the Kyles materiality definition).

We have applied the Kyles materiality standard in several recent cases. In State v. Esposito, supra, 235 Conn. 818-19, the defendant claimed that the state’s failure to disclose a tape recording in which a key witness made certain statements that were inconsistent with that witness’ later testimony constituted a Brady violation, inasmuch as the tape recording may have proved useful for impeachment purposes. We held, however, that “the undisclosed tape recording [was not] material within the Brady meaning of that term. ” (Internal quotation marks omitted.) Id., 818. Our basis for that holding was that “the undisclosed tape recording would not have provided the defendant with any significant impeachment material that was not already available and used by him . . . [and, therefore, the] nondisclosure neither deprived the defendant of a fair trial nor undermines our confidence in the outcome of this trial.” (Emphasis added.) Id., 819. We have reached similar conclusions regarding the nonmateriality of undisclosed evidence in other cases as well. See State v. Santiago, supra, 245 Conn. 312-13 (witness’ statement regarding description of shooter’s clothing not material); State v. Tomasko, 242 Conn. 505, 522, 700 A.2d 28 (1997) (witness’ alleged accusation of third party not material because nondisclosure did not “undermine confidence in the jury’s verdict”); State v. Rasmussen, 225 Conn. 55, 92, 621 A.2d 728 (1993) (undisclosed information about telephone calls allegedly made by defendant not material).

As was the case in Esposito, even if the information at issue here was not disclosed to the defendant, it was not material within the meaning of Brady because it was available to the defendant through other, independent sources. The defendant, through his counsel, was free to contact Miller and question him regarding his opinion of the defendant’s mental condition. There is no suggestion in the record, and the defendant does not allege, that the state attempted to prevent such contact. Therefore, any failure to disclose fully the contents of the conversations between Satti and Miller does not meet the materiality standard of Bagley and Kyles.

The judgment is reversed in part and the case is remanded with direction to deny the defendant’s motion in limine and for further proceedings according to law.

In this opinion SULLIVAN, CALLAHAN and SCHALLER, Js., concurred.

NORCOTT, J.,

dissenting. Although I find the analytic reasoning set forth by the majority to be flawless, I must dissent because it leads inexorably to a judgment to which I am opposed. As I have expressed previously, I believe that the death penalty is violative of the Connecticut constitution and, therefore, is legally and morally unacceptable. See State v. Cobb, 251 Conn. 285, 543, 743 A.2d 1 (1999) (Norcott, J., dissenting); State v. Webb, 238 Conn. 389, 566, 680 A.2d 147 (1996) (Norcott, J., dissenting).

Accordingly, I respectfully dissent.

       General Statutes § 53a-46a (c) provides: “In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the aggravating factors set forth in subsection (i) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.” We recognize that, for purposes of this appeal, the statute applicable to the defendant’s trial was General Statutes (Rev. to 1983) § 53a-46a. For the sake of uniformity and clarity, however, our references are to the statute as it is currently codified. Unless otherwise noted, there have been no substantive changes in the applicable text of the statute since its 1983 codification.

       We have jurisdiction to consider the merits of these appeals at this juncture because the state, in conjunction with its appeal, requested and obtained certification from the chief justice pursuant to General Statutes § 52-265a. Thereafter, this court consolidated the state’s appeal with the defendant’s appeal.

       Although the defendant alludes to various provisions of the state constitution, he has proffered no reasoned argument that the state constitution compels a result that differs from that required to be reached under the federal constitution.

       General Statutes § 52-265a provides: “(a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.
      “(b) The Chief Justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
      “(c) Upon certification by the Chief Justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the Chief Justice, who shall thereupon call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal.
      “(d) The Chief Justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”

       The conversations took place on February 20, 1987, and March 3, 1987.

       In Colton we held that the double jeopardy clause “should be extended to bar a new trial ... if the prosecutor in the first trial engaged in misconduct with the intent to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” (Internal quotation marks omitted.) State v. Colton, supra, 234 Conn. 696. We held further that, where a defendant makes such a claim of prosecutorial misconduct, he “should [be] allowed the opportunity to create a record of the alleged prosecutorial misconduct in an attempt to carry his burden to prove a double jeopardy violation . . . .” Id., 700.

       The trial court also found that two prior meetings had occurred, on March 6, 1987, and March 10, 1987. The disclosure of the notes at issue did not take place, however, until the March 18 meeting.

       Because we conclude that the information sought was not material, we do not address the trial court's conclusion that the information was exculpatory.

       Contrast our conclusions in those cases with State v. White, supra, 229 Conn. 136, in which we held undisclosed information about the only witness at the defendants’ probable cause hearing to be material by virtue of the fact that “[the witness’] testimony was the only evidence connecting [the defendants] to the crimes . . .


author: PETERS, J.

text:
    ATC PARTNERSHIP v. TOWN OF WINDHAM ET AL.
    (SC 16173)
    Borden, Katz, Palmer, Sullivan and Peters, Js.

      Argued November 2
    officially released December 14, 1999

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant (plaintiff).

      Thomas R. Gerarde, with whom, on the brief, was Michael J. Rose, for the appellees (named defendant et al.).

      Richard S. Cody, with whom were Lisa Silvestri and, on the brief, Ana Navarro, for the appellees (defendant Northeast Connecticut Economic Alliance, Inc., et al.).
   Opinion

PETERS, J.

This case concerns the extent to which constitutional principles of substantive due process, under the federal constitution or under our state constitution, permit a property owner to pursue an action for damages premised on a claim of intentional abuse of a municipality’s power of eminent domain. The plaintiff property owner claims that it is entitled to recover for the wilful, arbitrary and capricious seizure and condemnation of its property, in furtherance of a municipality’s intent to usurp an opportunity for economic development of the property. The question before us is whether such a claim states a viable cause of action either under 42 U.S.C. § 1983 (§ 1983), or under state constitutional law as articulated in Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). We conclude that it does not and, accordingly, we affirm the judgment of the trial court.

The plaintiff, ATC Partnership, filed a two count third amended revised complaint (complaint), alleging that the defendants, the town of Windham and the Northeast Ct. Economic Alliance, Inc., had violated the plaintiffs right to substantive due process in the course of seizing and condemning certain real and personal property owned by the plaintiff. The first count of the complaint claimed a violation of § 1983, and the second count claimed a violation of the plaintiffs rights under the state constitution. The trial court, Beach, J., granted the defendants’ motion to strike both counts of the plaintiffs complaint. Thereafter, the trial court granted the plaintiffs motion for judgment, and subsequently rendered judgment in favor of the defendants. The plaintiff appealed from that judgment to the Appellate Court, and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The plaintiffs complaint contains the following factual allegations in support of its claim that the defendants had engaged in conduct that constituted a “gross abuse of governmental power . . . for puiposes of oppression . . . which ha[s] deprived the plaintiff of its substantive constitutional right to due process of law.” The plaintiff was the owner of the American Thread Complex (complex), a piece of real property located in Windham. The complex premises also housed extensive personal property belonging to the plaintiff. On or about August 12, 1994, the defendants acted to condemn the complex, for the purpose of an ongoing economic redevelopment in northeastern Connecticut.

Prior to the condemnation, the plaintiff and the defendants had engaged in extensive, lengthy and unsuccessful negotiations for the sale of the complex to the defendants for the aforementioned economic redevelopment. The plaintiff alleged that, although it had “engaged at all times in good faith negotiations,” the defendants had “plotted, planned and conspired to usurp the economic development of said project as well as the personal property located therein and to confiscate same by whatever means were expedient to accomplish said purpose.” As evidence of this alleged conspiracy, and of the defendants’ bad faith, the plaintiff claimed that, at the end of the negotiations between it and the defendants, agents of the defendants had given the plaintiff an ultimatum: either accept $250,000 as a full and final settlement on all claims to the complex and any personal property located therein, or the defendants would condemn the property and award the plaintiff the token sum of $1.

The plaintiff further alleged that, in order to exert pressure on it to accept the defendants’ terms, the defendants had ordered the Windham tax collector, the defendant Linda Theriault, to levy an improper alias tax warrant on the personal property contained in the complex. The plaintiff also claimed that the defendants, prior to the condemnation, unlawfully had ordered officers of the Windham police department to prevent the plaintiff from exercising control over, and gaining access to, the complex and the personal property therein.

The record reveals the following additional relevant facts. On March 15,1995, following the condemnation of its property, the plaintiff commenced this action against the defendants for damages pursuant to § 1983. In its initial complaint, the plaintiff claimed only that the defendants had condemned its property without just compensation. The trial court, Silbert, J., struck the plaintiffs initial complaint on the grounds that the plaintiff had not yet exhausted its available state remedies, and that, therefore, the plaintiffs claim was not ripe for adjudication. The plaintiff subsequently filed an amended revised complaint and a second amended revised complaint. Thereafter, the trial court, Dunnell, J., struck the plaintiffs second amended revised complaint for essentially the same reasons that the initial complaint had been struck. Thereafter, the plaintiff filed the complaint that is the subject of this appeal.

In striking the plaintiffs complaint, the trial court, Beach, J., began by noting the similarity between the plaintiffs current complaint, and the two previously stricken complaints. As justification for striking the plaintiffs claim under § 1983, the court, relying on the United States Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), concluded that the plaintiffs claim was premature because the plaintiff had not yet exhausted all of its available state remedies. In conjunction with that determination, the court noted the line of United States Supreme Court cases that have held that “where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” (Internal quotation marks omitted.) Finally, the court noted its reluctance to “[expand] the concept of substantive due process, at least partly because it is a generally subjective standard that, at least at the stage of allegations, could run the gamut of tort law.”

Turning to the plaintiffs claim under the state constitution, the court concluded that our decision in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993), was controlling, and that under the holding of that case, there “was no . . . cause of action, partly because there already existed means of redress which may afford some, even if not all, of the relief sought.” The court acknowledged that our decision in Binette v. Sabo, supra, 244 Conn. 23, had, for some circumstances, created a private cause of action for violations of article first, §§ 7 and 9, of the Connecticut constitution, but concluded that this case was governed by Kelley Property Development, Inc., rather than by Binette.

On appeal to this court, the plaintiff claims that the trial court, Beach, J., improperly struck its complaint. Specifically, the plaintiff contends that the trial court improperly concluded that the alleged conduct of the defendants did not give rise to a valid claim for damages either under § 1983 or under the state constitution. We affirm the judgment of the trial court in both respects.

I

STANDARD OF REVIEW

As an initial matter, we set forth the standard of review by which we judge the plaintiffs appeal. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the defendants’ motions is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996).” Knight v. F. L. Roberts & Co., 241 Conn. 466, 470, 696 A.2d 1249 (1997). “In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible; Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997) . . . .” Cotto v. United Technologies Corp., 251 Conn. 1, 18, 738 A.2d 623 (1999). We must, therefore, “take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 696, 694 A.2d 788 (1997); Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996).” (Internal quotation marks omitted.) Jacoby v. Brinckerhoff, 250 Conn. 86, 89, 735 A.2d 347 (1999). Even under this deferential standard, however, neither of the plaintiffs claims may be sustained.

II

SECTION 1983 CLAIM

In the first count, the plaintiff alleged that the defendants’ conduct in seizing and condemning the plaintiffs real and personal property was so arbitrary and capricious that it rises to the level of a violation of the plaintiffs federal constitutional right to substantive due process, and therefore supports an action for damages under § 1983. See footnote 1 of this opinion. We agree with the trial court that the plaintiff has not stated a legally viable claim as a matter of federal law.

Section 1983 permits a federal cause of action to be brought against any “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States] . . . .” To state a valid claim under § 1983, a plaintiff must establish: “(1) [that] the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981).

The United States Supreme Court has recently reiterated that “in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). In this case, the deprivation alleged by the plaintiff is an impairment of its right to substantive due process, as guaranteed by the fourteenth amendment to the United States constitution. In order, therefore, to determine the propriety of the trial court’s striking of the plaintiffs § 1983 claim, we must examine the contours of the federal constitutional right to substantive due process.

It is axiomatic that the due process clause not only guarantees fair procedures in any governmental deprivation of “life, liberty, or property,” but also encompasses “a substantive sphere . . . barring certain government actions regardless of the fairness of the procedures used to implement them . . . .” (Citations omitted; internal quotation marks omitted.) Id., 840. This basic protection embodies the democratic principle that “the good sense of mankind has at last settled down to this: that [due process was] intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.” (Internal quotation marks omitted.) Id., 845, quoting Bank of Columbia v. Okely, 17 U.S. (4 Wheat.) 122, 126, 4 L. Ed. 559 (1819).

Despite the important role of substantive due process in securing our fundamental liberties, that guarantee “does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” County of Sacramento v. Lewis, supra, 523 U.S. 848. Rather, substantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm that “our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.” (Internal quotation marks omitted.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). Thus, substantive due process has been held to safeguard such intimate activities as marriage; Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); contraception; Griswold v. Connecticut, 381 U.S. 479, 481-82, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); education of children; Meyer v. Nebraska, 262 U.S. 390, 399-403, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); and bodily integrity. Rochin v. California, 342 U.S. 165, 171-72, 72 S. Ct. 205, 96 L. Ed. 183 (1952).

The plaintiff argues that the allegedly abusive conduct of the defendants in seizing and condemning its property falls into that protected realm as well. That argument is unpersuasive because it ignores two basic tenets of substantive due process jurisprudence. First, the governmental conduct at issue does not violate substantive due process unless it “shocks the conscience”; County of Sacramento v. Lewis, supra, 523 U.S. 846; and egregiously transcends the “decencies of civilized conduct.” Rochin v. California, supra, 342 U.S. 173. The alleged actions of the defendants in this case fall far short of meeting that exacting standard. Second, as the United States Supreme Court repeatedly has held, “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” (Internal quotation marks omitted.) Albright v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). Because both the fourth and fifth amendments to the United States constitution provide explicit protection against the arbitrary seizure and condemnation of private property, the plaintiff is precluded from redress under “the more generalized notion of substantive due process . . . .” (Internal quotation marks omitted.) Id. We discuss, in turn, each of these strands of the federal law of substantive due process.

A

The plaintiff claims that the alleged actions of the defendants were so arbitrary and oppressive that they violated its right to substantive due process. Even viewing the allegations contained in the plaintiffs complaint in a light most favorable to sustaining its validity, as we are bound to do considering the procedural posture of the case; Cotto v. United Technologies Corp., supra, 251 Conn. 18; we find that the conduct of which the plaintiff complains does not meet the mandated constitutional standard of the kind of misuse of governmental authority that is encompassed within cognizable claims of the denial of substantive due process.

Substantive due process is the embodiment of society’s desire to “prevent government from abusing [its] power, or employing it as an instrument of oppression.” (Internal quotation marks omitted.) Collins v. Harker Heights, 503 U.S. 115, 126, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). To that end, a claim of a violation of substantive due process must allege a “level of executive abuse of power . . . which shocks the conscience.” County of Sacramento v. Lewis, supra, 523 U.S. 846. A salient example of such abuse of power may be found in the very case in which the standard was first enunciated. In Rochin v. California, supra, 342 U.S. 172, the United States Supreme Court held that the forced pumping of a suspect’s stomach to retrieve evidence “shocked the conscience.” As the court described it, “[illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.” Id.

The court’s recent decision in County of Sacramento v. Lewis, supra, 523 U.S. 833, further illustrates the extremity of government abuse that must be alleged in order to sustain a substantive due process claim. In that case, reckless indifference by a police officer during a high-speed chase resulted in the death of the appellees’ decedent. In sustaining the trial court’s grant of summary judgment in favor of the county of Sacramento, the United States Supreme Court held that “[r]egardless [of] whether [the police officer’s] behavior offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound practice, it does not shock the conscience, and petitioners are not called upon to answer for it under § 1983.” Id., 855.

The facts alleged in, and fairly provable under, the plaintiffs complaint in this case similarly fail to meet the standard for a violation of substantive due process. The plaintiffs claims of government abuse are threefold, namely, that: (1) the defendants engaged in deliberately bad faith negotiations for the sale of the complex; (2) the defendants induced the town tax collector to issue an improper alias tax warrant in order to exert pressure on the plaintiff; and (3) the defendants ordered the Windham police to deny the plaintiff access to the complex prior to the actual condemnation. As in the County of Sacramento case, these actions may form the basis for other valid legal claims. Indeed, the plaintiff has filed three other lawsuits in order to obtain redress for its claimed injuries. The actions of the defendants as alleged in this case are, however, a far cry from the stomach pumping of Rochin, or the attempted regulation of personal decisions regarding marriage or contraception of Loving and Griswold. Similarly, the plaintiffs allegations do not resemble the type of oppressive governmental conduct that resulted in a death in the County of Sacramento case, and yet was held by the United States Supreme Court not to be actionable as a violation of substantive due process. In our view, the type of economic harm alleged in the plaintiffs complaint fails to rise to the conscience shocking level that the United States Supreme Court has set as the standard for violations of substantive due process.

B

The plaintiff farther argues that the trial court improperly concluded that the existence of an explicit source of constitutional protection against the type of government abuse alleged in this case forecloses the plaintiffs substantive due process claim. We disagree with the plaintiff.

In Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the United States Supreme Court first held that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Although this rule has been the subject of some scholarly criticism, the court has reaffirmed it three times since it decided Graham. See County of Sacramento v. Lewis, supra, 523 U.S. 842; United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997); Albright v. Oliver, supra, 510 U.S. 273. The Graham doctrine, which is premised on the court’s “ ‘reluctan[ce] to expand the concept of substantive due process’ County of Sacramento v. Lewis, supra, 842; is designed to ensure that “claim[s] [are] analyzed under the standard appropriate to that specific [constitutional] provision, not under the rubric of substantive due process.” United States v. Lanier, supra, 272 n.7.

In the present case, two specific constitutional provisions, the fourth and fifth amendments; see footnote 8 of this opinion; provide “explicit textual source[s] of constitutional protection” against the type of governmental misconduct alleged in the plaintiffs complaint. Graham v. Connor, supra, 490 U.S. 395. If the defendants’ seizure of the plaintiffs property prior to condemnation was illegal, then it may be actionable under the fourth amendment; if the condemnation itself was improper, then it may be actionable under the takings clause. In any event, the facts of this case do not warrant our departure from the analytical framework set forth by the United States Supreme Court in Graham.

c

In sum, not only is the government misconduct complained of hardly conscience shocking in a constitutional sense, but that misconduct has remedies grounded in two other explicit federal constitutional provisions. We, therefore, decline the plaintiffs invitation to recharacterize the alleged facts of this case as probative of a cognizable violation of a right to substantive due process. In so doing, we affirm the wisdom of the United States Supreme Court’s warning against employing “[o]ur Constitution ... to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Daniels v. Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). The guarantee of substantive due process is not “a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). In light of these considerations, we conclude that the trial court properly struck the plaintiffs § 1983 claim.

Ill

STATE CONSTITUTIONAL CLAIM

The plaintiffs alternate contention is that, even if federal law provides it no remedy, it has stated a valid claim under the state constitution. Although the plaintiff does not challenge directly the constitutional validity of the taking of its property through condemnation, it alleges that the conduct of the defendants, in anticipation of that taking, was so egregious that the defendants are hable for damages for their violation of the plaintiffs substantive due process rights under article first, § 8, of our state constitution.

The issue before us is framed by the two cases in which we have considered the viability of a constitutional tort claim under the state constitution. The plaintiff argues that its pleadings fall within the allegations sustained in Binette v. Sabo, supra, 244 Conn. 23, in which we recognized the validity of such a state constitutional claim under article first, §§ 7 and 9, of our state constitution in the context of allegations of an egregiously unreasonable search and seizure. The defendants argue, to the contrary, that the plaintiffs claim for relief is precluded by Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 314, in which we declined to recognize such a claim under article first, § 8, in the context of allegations of an intentional and arbitrary misuse of zoning authority to obstruct a real estate development project. The trial court held that Kelley Property Development, Inc., was the controlling precedent under the circumstances of this case. We agree.

In Binette, we declined to create an all-encompassing damages action for any and all alleged violations of state constitutional provisions. We held, instead, that whether such a cause of action should be recognized would be determined on a case-by-case basis. Binette v. Sabo, supra, 244 Conn. 48. Accordingly, we identified the factors to be considered as including the following: “the nature of the constitutional provision at issue; the nature of the purported unconstitutional conduct; the nature of the harm; separation of powers considerations and the other factors articulated in Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390-97, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)] and its progeny; the concerns expressed in Kelley Property Development, Inc.; and any other pertinent factors brought to light by future litigation.” Binette v. Sabo, supra, 48. Among the relevant concerns expressed in Kelley Property Development, Inc., was the undesirable prospect of conflict between statutorily provided administrative remedies and judicially created tort remedies arising out of the same controversy. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 339-40.

The plaintiff advances three reasons in support of its claim that its cause of action should be governed by Binette and not by Kelley Property Development, Inc. First, the plaintiff contends that, because it has alleged an excessive use of force by police officials, the conduct at issue resembles that alleged in Binette. Second, it maintains that existing statutory remedies for condemnation and common-law remedies for replevin or conversion are constitutionally deficient because such remedies provide no relief for the allegedly malicious and abusive manner in which the defendants exercised their authority. Third, it asserts that the police officers and elected officials who are the defendants in this case should be held to a higher constitutional standard of conduct than the standard applied to the Kelley Property Development, Inc., defendants, who were local volunteer members of a planning and zoning commission. We are not persuaded by any of these arguments.

With respect to the nature of the police conduct at issue, the plaintiffs complaint alleges that police officials intimidated it from exercising its lawful rights over both its personal and real property. Unlike the allegations in Binette, however, the allegations in the plaintiffs complaint do not assert that there was any physical confrontation between it and the police, or that the police, without a warrant, entered into aprivate home. The plaintiffs complaint does not purport to state any claim for an unconstitutional search and seizure under article first, §§ 7 and 9, of the state constitution. All that the plaintiff alleges is that, pursuant to an alias tax warrant for delinquent property taxes, the validity of which the plaintiff disputes, the defendants posted police officials at the plaintiffs business complex in order to preclude the plaintiff from having access to its property. That allegation is a far cry from the alleged egregious police misconduct that we held to be actionable in Binette. A municipality is not subject to constitutional reproach for a violation of the right to substantive due process simply because a taxpayer disputes the validity of the municipality’s recourse to statutorily authorized mechanisms for the collection of local taxes.

With respect to the availability of alternate remedies, the plaintiff contends that existing statutory and common-law remedies do not provide adequate constitutional protection for the impairment of its right to substantive due process that arises from the wilful and intentional abuse of governmental authority to condemn property for public purposes. Specifically, the plaintiff contends that nonconstitutional remedies do not provide it relief from the defendants’ bad faith negotiations that, according to the plaintiffs allegations, were intended to coerce the plaintiff into selling its property to the defendants at a fraction of its value. This contention is, however, indistinguishable from that which we found insufficient to warrant constitutional protection in Kelley Properly Development, Inc. There, too, as the dissenting opinion of Justice Borden highlighted, the plaintiff alleged that the defendants intentionally, knowingly and arbitrarily had abused their governmental authority to impair the plaintiffs ability to make proper economic use of its property. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 346-47. In accordance with Kelley Property Development, Inc., the plaintiffs contention cannot be sustained in this case.

Finally, the plaintiff urges us to hold that, because the defendants are police officials and elected public officers, they should be held to a higher standard of constitutional accountability for alleged impairment of the plaintiffs right to substantive due process than we held to be appropriate for the citizen planning and zoning commission members who were the defendants in Kelley Property Development, Inc. Although the defendants’ status as volunteers was a relevant factor in that case, it was not dispositive there. Similarly, the governmental status of the defendants is not dispositive in the present case.

At the end of the day, the single most important consideration in this case is that the plaintiffs substantive due process claim is premised entirely on alleged harm to its economic interests in the development of real and personal property. Federal case law has not extended a Bivens remedy for such a claim. Under, the circumstances, the remedies that are afforded to the plaintiff by the constitutional and statutoiy law of condemnation, the constitutional law of search and seizure and the common law of replevin and conversion are sufficiently compensatory to obviate the need for judicial recognition of a freestanding tort claim under article first, § 8, of our state constitution.

IV

CONCLUSION

We conclude that the trial court properly determined that the allegations contained in the plaintiffs third amended revised complaint are insufficient to state a cause of action either under § 1983 or under the due process clause of the Connecticut constitution. Our decision does not leave the plaintiff remediless. It remains free to pursue other avenues for relief that are better suited for its claim of improprieties in the seizure and condemnation of its property.

The judgment is affirmed.

In this opinion the other justices concurred.

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

       The complaint also names as defendants certain officials and agents of both the town of Windham and the Northeast Ct. Economic Alliance, Inc.: Walter Pawelkiewicz, Windham’s first selectman; George Barton, Hanna Clements, Joseph Marsalisi, John McGrath, Jr., Yolanda Negron, Charlotte Patros, C. Lawrence Schiller, Sam Shifrin, Sebastian Temullo and Thomas White, Windham’s other selectmen; Geri Langlois, Gail Mellow, Giacomo Guarnaccia, Betti Kuszaj, Timothy McNally, Robert Miller, Dimitrios Pachis, James Weiss and Donald Williams, the officers and directors of the Northeast Connecticut Economic Alliance, Inc.; Linda Theriault, Windham’s tax collector; Milton King, Windham’s chief of police; and Paul DeCadi, a Windham police lieutenant. For the sake of simplicity, we will follow the practice of the parties and refer throughout this opinion to the town of Windham and the Northeast Ct. Economic Alliance, Inc., as the defendants.

       The condemnation is the subject of a separate action currently pending in the Superior Court in the judicial district of Windham. Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, Superior Court, judicial district of Windham at Putnam, Docket No. 94-0049248-S.

       Unlike the third amended revised complaint, the plaintiffs initial complaint did not contain a claim for damages under the state constitution.

       Although §1983 speaks of persons being “[deprived] of . . . rights, privileges, or immunities secured by the Constitution and laws,” of the United States, it is well established that nonhuman legal entities, such as partnerships and corporations, have standing to assert a claim under § 1983. See Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 105, 110 S. Ct. 44, 107 L. Ed. 2d 420 (1989) (taxicab franchise); Des Vergnes v. Seekonk Water District, 601 F.2d 9, 16 (1st Cir. 1979) (corporations); Gordon v. Cartersville, 522 F. Sup. 753, 758 (N.D. Ga. 1981) (partnerships).

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . As with claims under § 1983, nonhuman legal entities are persons within the meaning of the due process clause. Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S. Ct. 444, 80 L. Ed. 660 (1936).

       It is well settled that a claim under § 1983 must be based on an alleged violation of a federal constitutional or statutory right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980); see California v. LaRue, 409 U.S. 109, 110 n.1, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972). Therefore, the plaintiffs claim of a violation of its state constitutional right to substantive due process, as a matter of law, cannot form the basis for its suit under § 1983. We discuss the plaintiffs claim under the state constitution in part III of this opinion.

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
      The fifth amendment to the United States constitution provides in relevant part: “[N]or shall private property be taken for public use, without just compensation.”

       The plaintiff has filed separate actions over the condemnation; Northeast Connecticut Economic Alliance, Inc. v. ATC Partnership, Superior Court, judicial district of Windham at Putnam, Docket No. 94-0049248-S; for conversion and replevin; ATC Partnership v. Windham, Superior Court, judicial district of Windham at Putnam, Docket No. 95-0049838-S; and over the improper tax liens. Windham v. ATC Partnership, Superior Court, judicial district of Windham at Putnam, Docket No. 96-0054331-S.

       The plaintiffs reliance on, inter alia, the Ninth Circuit Court of Appeals’ decision in Sinaloa Lake Owners Assn. v. Simi Valley, 882 F.2d 1398 (9th Cir. 1989), cert. denied, 494 U.S. 1016, 110 S. Ct. 1317, 108 L. Ed. 2d 493 (1990), is misplaced. Although the opinion in that case supports the plaintiffs claim, it was overruled by the Ninth Circuit in Armendariz v. Penman, 75 F.3d 1311, 1326 (9th Cir. 1996), and, therefore, affords the plaintiff no assistance.

       The plaintiff claims, as a threshold matter, that we should decline to review this issue because it “amounts to an alternative ground upon which to affirm the judgment of the trial court . . . [that] was never raised in the trial court [and for which] the . . . defendants failed to file a preliminary statement of the issues . ...” A careful review of the record reveals, however, that the trial court did, in fact, in part base its decision on the existence of “an explicit textual source of constitutional protection against a particular sort of government behavior,” namely, the takings clause. Because our review of the legal questions presented by a motion to strike is plenary; Knight v. F. L. Roberts & Co., supra, 241 Conn. 470; the trial court’s reliance on this concept properly is before this court regardless of the defendants’ failure to file a preliminary statement of issues.

       See, e.g., T. Massaro, “Reviving Hugo Black? The Court’s ‘Jot for Jot’ Account of Substantive Due Process,” 73 N.Y.U. L. Rev. 1086 (1998) (arguing that Graham rule erodes substantive due process protections).

       The plaintiffs reliance on United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993), and Soldal v. Cook County, 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992), is misplaced. The former case involved procedural, rather than substantive, due process and hence is inapposite. United States v. James Daniel Good Real Property, supra, 48-52. In the latter case, the court merely held that the fourth amendment, and not the takings clause, was the proper source of explicit textual protection against the governmental wrong alleged by the plaintiffs. Soldal v. Cook County, supra, 61. Contrary to the plaintiffs argument, neither case holds that if an explicit constitutional provision is implicated by supposed government misconduct, a court nevertheless should analyze the misconduct through the lens of substantive due process.

       Similarly unavailing is tire plaintiffs attempt to distinguish County of Sacramento v. Lewis, supra, 523 U.S. 833. Contrary to the plaintiffs contention that County of Sacramento departs from the Graham rule, the court in that case reached the substantive due process issue cmly because “[t]he Fourth Amendment covers only searches and seizures, neither of which took place here.” (Internal quotation marks omitted.) Id., 843. By contrast, there is no question that the property at issue in this case was “seized” within the meaning of the fourth amendment.

       Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       We analogized the constitutional tort action that we were recognizing to that described by the United States Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390-97, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Binette v. Sabo, supra, 244 Conn. 45-48.

       The plaintiffs in Binette alleged that police officers of the city of Torrington had entered the plaintiffs’ home without a warrant, unlawfully had threatened one of the plaintiffs with arrest and imprisonment, and had subjected both of the plaintiffs to repeated physical abuse during the course of effecting their arrest. Binette v. Sabo, supra, 244 Conn. 26.

       The plaintiff again relies on United States v. James Daniel Good Real Property, 510 U.S. 43, 114.S. Ct. 492, 126 L. Ed. 2d 490 (1993). As discussed previously; see footnote 13 of this opinion; that case is inapposite because it addresses a claim of procedural due process, rather than of substantive due process.