author: Arthur H. Healey, J.

text:
    State of Connecticut v. Daisy Hamilton
    (13696)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.

      Argued January 3
    decision released April 24, 1990

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga, assistant state’s attorney, for the appellant (state).

      Mark F. Gross, for the appellee (defendant).
   Arthur H. Healey, J.

The dispositive issue in this appeal is whether the Appellate Court erred in concluding that the discovery of certain keys used to unlock a van where drugs were stored was not inadvertent and thus did not qualify under the plain view doctrine as an exception to the warrant requirement. The Appellate Court in State v. Hamilton, 17 Conn. App. 385, 552 A.2d 834 (1989), held that, on the basis of the testimony given during the pretrial hearing on the defendant’s motion to suppress the van keys seized by the police in a search of her apartment, the trial court could have reasonably concluded that Detective Richard DeRiso had reason to believe, prior to the procurement of the four search warrants involved, that the van was ordinarily locked, that the keys were kept in the defendant’s apartment, and that DeRiso entered the defendant’s apartment with the specific purpose of locating the keys and thus the discovery of such keys was not inadvertent to come within the plain view doctrine. We granted the state’s petition for certification to appeal from the Appellate Court; State v. Hamilton, 211 Conn. 804, 559 A.2d 1138 (1989); and conclude that the Appellate Court did not err in finding that the discovery of the keys was not inadvertent under the plain view doctrine.

Although the Appellate Court has set out sufficient facts, we need to present those facts relevant to the proper disposition of the issue presented. On February 17, 1987, Detectives DeRiso and Miguel Cardozo of the Bridgeport police department obtained four search warrants authorizing the search of (1) the defendant’s residence, building 5, apartment 305, of the P. T. Barnum Apartments in the city of Bridgeport; (2) a tan and orange van without license plates located at the P. T. Barnum Apartments; (3) the person of the defendant’s son, Dayomas Hamilton; and (4) the person of the defendant, Daisy Hamilton. The warrant listed the items to be seized as including, inter alia, “[cjocaine, any paraphernalia used in cutting and packaging of cocaine such as scales, grinders, strainers, measuring spoons, plastic baggies, glassine bags, pyramid papers, plastic vials, lactose, any monies and or records pertaining to the sales of cocaine and any firearms used for the personal protection of drug traffickers.”

DeRiso and Cardozo had applied for the warrants on the basis of information given to them by an informant that crack was being sold from the defendant’s apartment and on the basis of their own observation on February 11, 1987, of a subsequent “controlled buy” involving the defendant’s son, Dayomas, conducted with the participation of an informant. While conducting the “controlled buy,” DeRiso and Cardozo had observed Dayomas escort the informant from the defendant’s apartment to an unregistered tan and orange Ford van located outside the apartment, which Dayomas “unlocked and entered.” The two officers observed Dayomas exit the van and deliver the drugs to the informant.

On February 18,1987, DeRiso and other police officers executed the warrants. Prior to executing the warrants, however, DeRiso or Cardozo held a “briefing meeting.” At that meeting, the officers were briefed about the “controlled buy” from the Ford van and told to search for narcotics. At the same time, several officers were assigned to guard the Ford van, and Detective Thomas Russell was assigned to search the defendant’s bedroom, Shortly after DeRiso, who was in charge of the search party, and the other officers entered the defendant’s apartment, he asked the defendant “if the keys to a van parked outside were in the apartment.” The defendant stated, “I don’t know who that van belongs to nor do I know where the keys are."

In the course of searching the defendant’s bedroom for narcotics, Russell came across a set of keys on a shelf. He did not seize the keys at that time. Russell testified at the hearing on the motion to suppress that as he looked at these keys, they meant nothing to him “whatsoever.” While Russell was still searching in the bedroom, DeRiso asked the officers whether anyone found keys to a Ford van. It was only then that Russell attached significance to the keys. Russell then took the keys off the shelf and gave them to DeRiso. DeRiso took the keys and opened the Ford van described in the warrant. In the defendant’s apartment and in the Ford van, the officers found incriminating evidence including several vials of cocaine. The defendant was subsequently charged by information with two counts of unlawful possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-278 (b) and one count of possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c).

At the hearing on the motion to suppress, defense counsel argued, inter alia, that the keys should be suppressed because they had not been listed in the search warrant and, therefore, the seizure of the keys was illegal. The state argued that the keys were admissible under the plain view exception to the warrant requirement. The court orally granted the defendant’s motion to suppress, holding that the seizure of the keys was not legal under the plain view exception because the keys had not been discovered inadvertently. In doing so, the trial court noted that keys are not “of themselves” contraband and are not normally tools of crimes. From this judgment the state appealed to the Appellate Court, pursuant to General Statutes § 54-96.

The Appellate Court held that the trial court could reasonably have concluded that the keys were not inadvertently discovered in the course of the search of the defendant’s apartment within the meaning of the plain view exception and that the seizure of the keys was therefore not justified by that exception. State v. Hamilton, supra, 17 Conn. App. 391. The court stated that “[f]or a discovery to be inadvertent within the meaning of the plain view exception, police must not have anticipated the discovery or have known in advance the location of the evidence. ... A discovery is inadvertent if it occurs ‘without premeditation or prior intention.’ ” Id., 389. We agree.

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.” This amendment prohibits general and exploratory searches. Both state and federal courts are required to exclude evidence obtained by means of searches found violative of the fourth amendment. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), made applicable to states in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); see State v. DelVecchio, 149 Conn. 567, 572-73, 576, 182 A.2d 402 (1962).

It has been said that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Zindros, 189 Conn. 228, 236-37, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). In Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), a plurality of the United States Supreme Court created an exception to the warrant requirement of the fourth amendment known as the “plain view” doctrine. This doctrine “is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.” State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980). A plain view seizure is reasonable under the fourth amendment if the police: (1) were lawfully on the premises and engaged in a lawful activity; (2) discovered the evidence inadvertently; and (3) have probable cause to believe there is a reasonable relationship between the evidence seized and the criminal behavior under investigation. Texas v. Brown, 460 U.S. 730, 741-43, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, supra, 466; State v. Reddick, 207 Conn. 323, 335, 541 A.2d 1209 (1988); State v. Magnano, 204 Conn. 259, 271, 528 A.2d 760 (1987); State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982); State v. Graham, 186 Conn. 437, 443-44, 441 A.2d 857 (1982); State v. Federici, 179 Conn. 46, 56, 425 A.2d 916 (1979); State v. Onofrio, 179 Conn. 23, 39-40, 425 A.2d 560 (1979); State v. Pepe, 176 Conn. 75, 79-80, 405 A.2d 51 (1978); State v. Krause, 163 Conn. 76, 82-83, 301 A.2d 234 (1972); 2 W. LaFave, Search and Seizure § 4.11 (a). In this case, in view of the certified question, we only address the inadvertence limitation of the plain view doctrine.

The plurality in Coolidge v. New Hampshire, supra, 469-71, in setting out the inadvertence limitation, stated: “The rationale of the exception to the warrant requirement . . . is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a ‘general’ one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the.situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ”

The state contends, however, that there is no inadvertency requirement under the plain view doctrine. It asserts that twelve years after Coolidge was decided, the United States Supreme Court in Texas v. Brown, supra, was divided as to whether inadvertency was a requirement.

In State v. Ruscoe, 212 Conn. 223, 237 n.8, 563 A.2d 267 (1989), cert. denied, U.S. , 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990), we noted “the uncertain status of the ‘inadvertence’ aspect of the plain view doctrine.” In Ruscoe, we recognized that “[t]his ‘requirement’ of the plain view doctrine has never been accepted by a judgment supported by a majority of the United States Supreme Court.” Id.; see Arizona v. Hicks, 480 U.S. 321, 330, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (White, J., concurring) (requirement of inadvertency never accepted by a majority of the court), (O’Connor, J., with Rehnquist, C. J., and Powell, J., dissenting) (though inadvertency requirements of Coolidge never expressly adopted by the majority of the court, Coolidge plurality decision should be point of reference for further discussion of the issue); Texas v. Brown, supra, 743 (plurality opinion) (“[wjhatever may be the final disposition of the ‘inadvertence’ element of ‘plain view,’ it clearly was no bar to the seizure here”), (White, J., concurring) (no inadvertency requirement), (Powell, J., with Blackmun, J., concurring) (no reason to criticize Coolidge because generally accepted for more than a decade); Washington v. Chris-man, 455 U.S. 1, 5-6,102 S. Ct. 812, 70 L. Ed. 2d 778 (1982) (omitted as a separate requirement); Coolidge v. New Hampshire, supra (plurality opinion) (inadvertency requirement endorsed), (Black, J., with Black-mun, J., dissenting) (no inadvertency required for plain view), 517 (White, J., with Burger, C. J., dissenting) (criticizing inadvertency requirement as “punitive and extravagant application of the exclusionary rule”).

Although a majority of the United States Supreme Court has not adopted the inadvertence aspect, most lower courts have adopted it as an essential element of the plain view doctrine. See Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir. 1987); Perlman v. Chicago, 801 F.2d 262, 266 (7th Cir. 1986), cert. denied, 480 U.S. 906, 107 S. Ct. 1349, 94 L. Ed. 2d 520 (1987); United States v. Newton, 788 F.2d 1392, 1394-95 (8th Cir. 1986), cert. denied, 488 U.S. 1031, 109 S. Ct. 841, 102 L. Ed. 2d 973 (1989); United States v. Fawole, 785 F.2d 1141, 1146-47 (4th Cir. 1986); see United States v. $10,000 in United States Currency, 780 F.2d 213, 218 (2d Cir. 1986); United States v. Liberti, 616 F.2d 34, 36 (2d Cir.), cert. denied, 446 U.S. 952, 100 S. Ct. 2918, 64 L. Ed. 2d 808 (1980); United States v. Hare, 589 F.2d 1291, 1294 (6th Cir. 1979); United States v. Worthington, 544 F.2d 1275, 1280 (5th Cir.), cert. denied, 434 U.S. 817, 98 S. Ct. 55, 54 L. Ed. 2d 72 (1977); Commonwealth v. Cefalo, 381 Mass. 319, 409 N.E.2d 719 (1980); State v. Clark, 592 S.W.2d 709 (Mo. 1979), cert. denied, 449 U.S. 847, 101 S. Ct. 132, 66 L. Ed. 2d 57 (1980); State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978); Commonwealth v. Millard, 273 Pa. Super. 523, 417 A.2d 1171 (1979); see also 2 W. LaFave, supra, § 4.11 (d), p. 350 and cases cited therein; W. Ringel, Searches and Seizures, Arrests and Confessions § 6.5 (a) (2) and cases cited therein; but see North v. Superior Court, 104 Cal. Rptr. 833, 502 P.2d 1305 (1972); State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974); State v. King, 191 N.W.2d 650 (Iowa 1971), cert. denied, 406 U.S. 908, 92 S. Ct. 1617, 31 L. Ed. 2d 819 (1972); State v. Romero, 660 P.2d 715 (Utah 1983).

This court has adopted the inadvertence limitation and has consistently applied it as an element of the plain view doctrine. See State v. Reddick, supra; State v. Altrui, supra; State v. Graham, supra; State v. Federici, supra; State v. Pepe, supra; State v. Watson, 165 Conn. 577, 587, 345 A.2d 532 (1973); State v. Krause, supra. In State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), we held, however, that “inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.” See State v. Ruscoe, supra, 238 (contraband involved). In Coolidge v. New Hampshire, supra, 472, Justice Stewart, writing for the plurality, carefully pointed out that Coolidge did not involve contraband, stolen goods or objects dangerous in themselves. He stated that “to extend the scope of such an intrusion to the seizure of objects — not contraband nor stolen nor dangerous in themselves — which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.” Id., 471. A number of lower courts have also interpreted Coolidge to have held the inadvertence limitation inapplicable to contraband, stolen goods and objects dangerous in themselves. See United States v. Johnson, 707 F.2d 317, 321 (8th Cir. 1983); United States v. Vargas, 621 F.2d 55, 56 (2d Cir.), cert. denied, 449 U.S. 854, 101 S. Ct. 150, 66 L. Ed. 2d 68 (1980); see also United States v. Freeman, 685 F.2d 942, 954 n.7 (5th Cir. 1982), and cases cited therein; 2 W. LaFave, supra.

This case does not involve the seizure of contraband, stolen goods, or objects dangerous in themselves. The item that was allegedly unconstitutionally seized was a set of keys. Therefore, on the basis of this court’s adoption and application of the plain view doctrine, the inadvertent discovery limitation of the plain view doctrine is applicable to the seizure in this case.

It has been noted that “[t]he most serious problem with the plurality’s approach [in Coolidge] to plain view is that Justice Stewart nowhere defined the degree of expectation required to make a discovery by the police inadvertent.” H. Kalven, “The Supreme Court, 1970 Term,” 85 Harv. L. Rev. 3, 244 (1971). The court in Coolidge simply stated “where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it,” the plain view doctrine does not apply. Coolidge v. New Hampshire, supra, 470. In State v. Pepe, supra, 79-80, this court stated: “The police need not be caught completely by surprise for a discovery to be inadvertent, so long as they did not anticipate the discovery or know in advance the location of the evidence and intend to seize it.” If the police were completely surprised by their discovery of the evidence seized in plain view, there is no question that the discovery is inadvertent. The question of whether a discovery is inadvertent arises, however, where the police anticipated finding the evidence and had reason to believe the evidence would be found but failed particularly to describe that item in the search warrant.

In United States v. Hare, supra, 1294, the Sixth Circuit Court of Appeals provides an analysis of the inadvertence limitation of the plain view doctrine that we find persuasive. In Hare, the court interpreted “inadvertence” in the context of the plain view doctrine to mean “that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise justified search.” The court reasoned that “[tjhere are many times when a police officer may ‘expect’ to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery.” Id.

The court further stated: “At first, it may seem illogical to hold that police who lawfully enter premises and discover evidence which is not described in their warrant, in the course of a properly limited search, may not seize it if they knew they would find it before entering, but may seize it if they only thought they might find it, or if they discover it unexpectedly. After all, the line between suspicion and probable cause is seldom very clear. It makes sense, however, if the fact is kept in mind that a warrant is normally required before a search can be conducted or a seizure effectuated, and if it is remembered that the only reason plain view seizures are permitted at all is because the intrusion which the Fourth Amendment seeks to guard against has already lawfully occurred, and the police are faced with a situation in which they observe evidence which they could not have obtained permission to seize, and which now is likely to disappear or be destroyed if they stop and leave to obtain a new warrant. This is the ‘exigency’ which underlies the plain view doctrine, and without this exigency the entire rationale falls. We note that the police cannot create their own exigency by simply failing to obtain a warrant until they are faced with the evidence.” Id., 1295.

The Appellate Court, in stating that “[a] discovery is inadvertent if it occurs ‘without premeditation or prior intention,’ ” quoted United States v. $10,000 in United States Currency, supra, in which the Second Circuit Court of Appeals broadly interpreted the inadvertence limitation. State v. Hamilton, supra, 17 Conn. App. 389. In that case, the court stated that the “focus of the [suppression] hearing is better directed toward the good faith of the police action when fully reviewed” instead of focusing on whether the police had probable cause to know the evidence would be discovered. United States v. $10,000 in United States Currency, supra, 219. The court stated that “where the proof indicates that the police have conducted a thorough investigation of the crime and the means available to prove it and the search is conducted in a manner reasonable in duration and intensity, the property seized may be found to be inadvertently discovered in plain view.” Id.

The court, in rejecting a probable cause analysis, stated: “Nor is the existence of probable cause, unrecognized by the police, sufficient to bar discovery as not inadvertent. Such a purely ‘objective’ approach would exclude important evidence simply because the police ‘by oversight or acting from an abundance of caution or out of a misapprehension of what it takes to obtain a search warrant covering that evidence, failed to include that item in the warrant executed.’ 2 W. LaFave, [supra,] § 4.11 at 181.” Id., 218. We do not find persuasive the Second Circuit Court of Appeals’ interpretation of the inadvertence aspect of the plain view doctrine.

The Second Circuit’s interpretation of “inadvertence” permits a warrantless seizure of an item even though the police know the location of the item and intend to seize it, so long as the police acted in good faith in executing the warrant. We believe that this interpretation is contrary to what the plurality intended the inadvertence limitation to mean. In Coolidge, the plurality stated: “If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of ‘Warrants . . . particularly describing . . . [the] things to be seized.’ . . . [T]o extend the scope of such an intrusion to the seizure of objects . . . which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.” Coolidge v. New Hampshire, supra, 471. It is apparent that Coolidge does not support a good faith standard but rather it was intended to prevent a plain view seizure when the police knew in advance the location of an item and intended to seize it. See H. Wallin, “The Uncertain Scope of the Plain View Doctrine,” 16 U. Balt. L. Rev. 266, 278 (1987). The court in $10,000 in United States Currency permits, however, such a seizure so long as the seizing officer acted in good faith in executing the warrant. The court stated that, “even if the police in good faith failed to mention an item in the warrant, the manner in which the search was actually conducted can render discovery no longer inadvertent.” United States v. $10,000 in United States Currency, supra, 219.

While it is true that the court in Coolidge v. New Hampshire, supra, 470, was concerned with turning “an initially valid (and therefore limited) search into a ‘general one,’ ” that concern was based on the fourth amendment requirement that “warrants shall . . . particularly [describe] the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. “The [particularity requirement of the fourth amendment] was a direct response to the evil of the general warrant, one of the abuses by the Crown that led to the American revolution: ‘[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general exploratory rummaging in a person’s belongings .... [The fourth amendment addressed the problem] by requiring a “particular description” of the things to be seized.’ Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 2748, 49 L. Ed. 2d 627 (1976) (quoting Coolidge v. New Hampshire, [supra, 467]).” United States v. Shoffner, 826 F.2d 619, 630 (7th Cir. 1987). If the police know in advance that the evidence will be discovered and they intend to seize it, failure to include that evidence in the search warrant violates the particularity requirement of the fourth amendment regardless of any claimed good faith of the officer. For this reason, we disagree with the good faith rationale in United States v. $10,000 in United States Currency, supra.

The court, in United States v. Hare, supra, 1294, stated that Coolidge meant “only to condemn warrantless seizures when a warrant could have been obtained — in other words, when the exigency which normally accompanies a plain view seizure is not present.” In Coolidge, the court stated: “Since the police knew of the presence of the automobile and planned all along to seize it, there was no ‘exigent circumstance’ to justify their failure to obtain a warrant.” Coolidge v. New Hampshire, supra, 472. An exigency occurs when “the police are faced with a situation in which they observe evidence which they could not have obtained permission to seize, and which now is likely to disappear or be destroyed if they stop and leave to obtain a new warrant. . . . We note that the police cannot create their own exigency by simply failing to obtain a warrant until they are faced with the evidence.” United States v. Hare, supra, 1295.

We interpret the inadvertence limitation of the plain view doctrine to mean that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise justified search. Id., 1294.

We next apply this interpretation and analysis of the inadvertence limitation of the plain view doctrine to the facts of this case. In determining whether the Appellate Court erred in concluding that the trial court could reasonably have found that the discovery of the keys was not inadvertent, we must review the evidence presented to the Appellate Court regarding the information available to the officers concerning the crime and the circumstances leading to the issuance of the search warrants. We note that the Appellate Court, in reviewing the action of the trial court, recognized that, because the requirement of obtaining a warrant is the rule, exceptions to which are few and zealously guarded, anyone, such as the state, claiming an exemption from that rule bears the burden of proving the need for it. State v. Zindros, 189 Conn. 228, 456 A.2d 288 (1983).

In paragraph three of the affidavit in support of the search warrant, DeRiso and Cardozo presented the following information: “Affiants let the informant out of the unmarked police vehicle, keeping him in view at all time and watched him enter the doorway of building #5 which leads to apartment #305 of the P. T. Barman Apartments. After a few minutes the below signed affiants observed the informant exit the same doorway and return to the same area that he was let out at. The informant told the below signed affiants that when he went to Apt. #305 he spoke to a Black female he knows as Daisy. After asking her if she had Crack she took $10.00 from him and asked him to wait. After a few minutes Dayomas, known to him as Daisy’s son, told the informant to come with him. They both exited the apartment and on the way down the stairs the informant asked Dayomas where are we going and Dayomas replied that they were keeping the Crack downstairs in the Van. Informant stated that Dayomas opened the driver’s side of a tan and orange, Ford Van and take out one vial and hand it to the informant. Affiants also observed the informant and the young black male go to the tan and orange Ford van which was parked just outside the door, affiants were unable to [see the] registration at this time due to van being backed-up against the wall. Informant turned over to Detective DeRiso a small vial containing a hard off white substance which he had just purchased in the above transaction. Informant was once again searched to make sure he was not carrying any other narcotics or contraband.” In addition, in paragraph six of the affidavit, they stated that the informant had “told Detective DeRiso that the orange and tan van [where] he purchased the Crack was unregistered because it had no plate on it.”

On the basis of this information and information provided in several additional paragraphs in the affidavit, the issuing judge found that the officers had established probable cause to search the defendant’s apartment, the tan and orange van outside the defendant’s apartment, the defendant’s person, and her son’s person. The issuing judge gave the officers permission to search for “Cocaine, any paraphernalia used in cutting and packaging of cocaine such as scales, grinders, strainers, measuring spoons, plastic baggies, glassine bags, pyramid papers, plastic vials, lactose, any monies and or records pertaining to the sales of cocaine and any firearms used for the personal protection of drug traffickers.”

The trial court could reasonably have found, as the Appellate Court concluded, that the officers had sufficient information to believe that the keys to the van would be found in the defendant’s apartment to warrant a finding that the discovery of the keys was not inadvertent and that a warrant should have been obtained. In particular, we point out that the informant told the officers that the defendant’s son had told him that they kept the crack downstairs in the van outside the defendant’s apartment. It is reasonable for the officers to have known, on the basis of their training, experience, and knowledge of the crime of possession of narcotics, that the owner of the crack or drugs in the van would have taken necessary precautions to protect the drugs from being stolen. At a minimum, the owner would have locked the doors to the van. As the Appellate Court pointed out, “[DeRiso’s] testimony indicated that he had reason to believe, prior to the procurement of the warrants, that the van was ordinarily locked and that the keys were kept in the defendant’s apartment.” State v. Hamilton, supra, 17 Conn. App. 389. At the suppression hearing, DeRiso, in describing his observations when Dayomas and the informant went to the van, testified: “ ‘The son went to door [of the van]. I believe it was locked because he was at the door for a little while. Then he opened the door.’ (Emphasis added.)” Id., 389 n.1. In addition, as indicated in the affidavit, the officers knew the van was unregistered; therefore, in order to establish a nexus between the van that contained the drugs outside the defendant’s apartment and the defendant, they knew or should have known, on the basis of their training and experience, that they had to obtain the keys to the van to establish the necessary nexus between the defendant’s possession of the van and the possession of the drugs.

Moreover, the trial court could reasonably have concluded, as the Appellate Court found, that the officers entered the defendant’s apartment with the specific purpose of locating the keys. In the defendant’s motion for discovery and inspection, dated April 14,1987, the defendant requested the state to disclose, inter alia, any oral declarations made “in response to interrogatories by any person then known to the defendant to be a law enforcement officer.” On July 10, the state disclosed that “[t]he defendant was asked during the search of her apartment by police if the keys to a van parked outside were in the apartment. The defendant stated, T don’t know who that van belongs to nor do I know where the keys are.’ ” At the hearing on the motion to suppress, DeRiso testified on cross-examination, by defendant’s counsel, that he inquired of the defendant herself about the keys shortly after he arrived at the defendant’s apartment.

On the basis of this evidence, we conclude that the Appellate Court did not err in concluding that the discovery of the van keys was not inadvertent within the meaning of the plain view exception. There was sufficient evidence in the record for the Appellate Court to have concluded that the trial court could reasonably find that the officers had probable cause to believe that the keys would be discovered in the defendant’s apartment. The trial court, in granting the defendant’s motion to suppress, stated that “obviously the police officers were at least, loosely, aware that there was some alleged relationship between this van and the alleged activities of the accused, Daisy Hamilton. We then have what might almost be called a gratuitous statement from the state’s attorney’s office that a question was asked by someone of the accused, about the keys to the van almost immediately after going into the apartment for the search . . . .” The trial court concluded that, on the basis of these facts, discovery of the keys was not inadvertent. The court stated that the police officers “certainly could have asked for [the keys]. They go through a whole litany of things . . . they wished to seize, namely something that was probably taken from some other search warrant . . . instead of stopping and thinking, now is there anything else that we should ask for [that is] related to this case, they just didn’t bother to do it. And under the circumstance, I don’t think that the keys as seized come in under an exception to the constitutional rights of the accused, namely, the plain view doctrine.”

The plain view doctrine was not intended to be used by the police to avoid the warrant requirements in such circumstances as existed in this case. It was designed to permit the seizure of evidence that could not constitutionally be seized under a search warrant because of the lack of probable cause “and which . . . is likely to disappear or be destroyed if they stop [the search] and leave to obtain a new warrant. This is the ‘exigency’ which underlies the plain view doctrine, and without this exigency the entire rationale falls.” United States v. Hare, supra, 1295.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       This court also certified a second issue which was presented as follows: “When in the course of a search pursuant to a warrant the police discover keys that may be used to unlock a van that is also authorized to be searched under the warrant, may the keys be seized for that purpose?” Because the gravamen of the defendant’s motion to suppress was not the use of the keys to open the van but the introduction into evidence of proof that the keys that fit the lock on the van were found in the defendant’s possession, we do not address this issue.

       The officers reported on February 18, 1987, on their inventory sheet that they found only “one plastic baggie containing vials with caps, one hand held scale, one larger plastic baggie containing smaller plastic zip lock baggies.” Keys were not mentioned in the inventory. It was not until after the first day of the suppression hearing that the state made a full disclosure of the exact items seized which included the set of van keys.

       In Justice White’s dissent and concurrence in Coolidge v. New Hampshire, 403 U.S. 443, 519, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 484 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971), he stated: “Apparently, contraband, stolen, or dangerous materials may be seized when discovered in the course of an otherwise authorized search even if the discovery is fully anticipated and a warrant could have been obtained.” Moreover, Justice Black, who also dissented on this point, apparently construed the plurality opinion in the same manner. Id., 507 n.4; see also United States v. Liberti, 616 F.2d 34, 36 (2d Cir.), cert. denied, 446 U.S. 952, 100 S. Ct. 2918, 64 L. Ed. 2d 808 (1980).

        State v. Pepe, 176 Conn. 75, 80, 405 A.2d 51 (1978), involved stolen goods. After our decision in Pepe, we held that “inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.” State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Ruscoe, 212 Conn. 223, 237 n.8, 563 A.2d 267 (1989), cert. denied, U.S. , 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

       For other jurisdictions adopting the analysis of “inadvertence” in United States v. Hare, 589 F.2d 1291 (6th Cir. 1979), see, e.g., People v. Stoppel, 637 P.2d 384 (Colo. 1981) (adopting the “reasoned and thorough evaluation of inadvertence”); see State v. Howard, 448 So. 2d 713, 718 (La. App. 1984); People v. Myshock, 116 Mich. App. 72, 321 N.W.2d 849 (1982) State v. Clark, 592 S.W.2d 709 (Mo. 1980), cert. denied, 449 U.S. 847, 101 S. Ct. 132, 66 L. Ed. 2d 57 (1980); State v. White, 322 N.C. 770, 370 S.E.2d 390, cert. denied, 488 U.S. 958, 109 S. Ct. 399, 102 L. Ed. 2d 387 (1988);
      One commentator has noted that while courts and commentators have not agreed on the scope of the “inadvertence” element of the plain view doctrine, “the better position seems to be that a discovery is inadvertent even if the police suspected they would find an item, unless they had probable cause to obtain a warrant to search for it. See, e.g. . . . United States v. Hare, [supra,] 1294 . . . . ” L. Bloom, “The Law Office Search: An Emerging Problem and Some Suggested Solutions,” 69 Georgetown L. J. 1, 85-86 n.439 (1980).

       One commentator has noted that “[c]ourts relying on a good faith criterion must examine the subjective intent of [the] intruding officers. This determination entails inquiry into whether the failure to list the evidence was deliberate or accidental, whether the invasion was undertaken with the expectation that these objects would be seized, and whether all the officers were operating under the same misapprehension. A more practical guide for determining whether seizures are inadvertent is the familiar and workable probable cause standard.” H. Wallin, “The Uncertain Scope of the Plain View Doctrine,” 16 U. Balt. L. Rev. 266, 278 (1987). Moreover, we have stated that the test to determine probable cause is objective and does not require a determination of the subjective intent of the police. See Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980); State v. DeChamplain, 179 Conn. 522, 528, 427 A.2d 1338 (1980). Therefore, a court can determine whether there is probable cause to invalidate a seizure under the plain view doctrine by looking at the facts and circumstances of the crime.

       It has been noted that “the greatest effect of the inadvertence rule will be the creation of troublesome practical problems of proof at suppression hearings. Since the burden is traditionally on those seeking exemption from the warrant requirement to show the need for it, the plurality’s rule [in Coolidge v. New Hampshire] will foster an anomalous situation in which police contend they did not have probable cause to seize the object before they made their entry, while the defendant contends probable cause existed and the police could have obtained a warrant. Such a scenario would hardly encourage police truthfulness.” H. Kalven, “The Supreme Court, 1970 Term,” 85 Harv. L. Rev. 3, 245 (1971); see also 2 W. LaFave, Search and Seizure § 4.11 (d). Whether we interpret the inadvertence limitation of the plain view doctrine as requiring the invalidation of discoveries when the police either have probable cause or have an expectation that the evidence will be discovered presents the same difficulties in the burden of proof. This doctrinal difficulty is inherent in the inadvertence limitation of the plain view doctrine. This difficulty does not, however, outweigh the protection the fourth amendment provides against planned warrantless seizures. As one scholar noted: “Probable cause is necessary in the inadvertence requirement to prevent the police from conducting a planned warrantless seizure on plain view and manipulating the warrant requirement to defeat the Fourth Amendment.” J. Hall, Search and Seizure § 3:13.


source: Caselaw Access Project

license: Public Domain

text:
    Jacques Rostain v. Hana Rostain
    (13697)
    Healey, Shea, Callahan, Glass and Hull, Js.
    decision released April 20, 1990
    Argued November 9, 1989

      Robert M. Wechsler, with whom, on the brief, was Michael Jon Barbarula, for the appellant (defendant).

      Michael A. Meyers, with whom, on the brief, was Patricia C. Reath, for the appellee (plaintiff).
   Arthur H. Healey, J.

This is an appeal from certain orders concerning the judgment by the trial court dissolving the marriage of the parties. We heard argument on this appeal on November 9,1989, after which we remanded the case to the trial court for farther proceedings. Rostain v. Rostain, 213 Conn. 686, 569 A.2d 1126 (1990). In doing so, we directed the trial court to articulate further the factual basis of certain conclusions it had reached, as we fully set out in that opinion. Id., 695. On March 29, 1990, the trial court filed its articulation as ordered, which permits us to proceed and dispose of this appeal. Thereafter, the defendant filed her “Motion ... for Permission to Submit a Supplemental Memorandum of Law and For Post-Articulation Further Argument,” which we denied.

On appeal, the defendant, Hana Rostain, claimed that the trial court had erred in finding as a fact that: (1) the plaintiff purchased his residential condominium and boat dock in Stamford “solely” with funds inherited from his father; (2) neither party was responsible for the breakdown of the marriage; and (3) all of the noninherited assets were totally or substantially purchased by the plaintiff from his own funds. She also claimed that the trial court’s orders concerning the division of personal property were clearly erroneous as there was no evidence that such property in fact existed or that it was in her possession. Finally, the defendant contended that the trial court erred in not awarding her periodic alimony and that the failure to do so was contrary to General Statutes § 46b-82 and was an abuse of discretion. Every one of these claims of error was fully briefed and argued before this court on November 9, 1989. We find no error.

As we have repeatedly noted, “trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.” Jacobsen v. Jacobsen, 177 Conn. 259, 262, 413 A.2d 854 (1979); Darak v. Darak, 210 Conn. 462, 475, 556 A.2d 145 (1989); Hardisty v. Hardisty, 183 Conn. 253, 260, 439 A.2d 307 (1981). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached”; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980); as “[t]he conclusions which we might reach, were we sitting as the trial court, are irrelevant.” Carpenter v. Carpenter, 188 Conn. 736, 741, 453 A.2d 1151 (1982); Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). Moreover, we have specifically said that “[w]ith respect to the financial awards in a dissolution action, great weight is to be given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.” Venuti v. Venuti, 185 Conn. 156, 161, 440 A.2d 878 (1981); Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983). “The scope of our review ‘of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.’ ” Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981). We do not retry the facts. Leo v. Leo, supra; Carpenter v. Carpenter, supra, 741-42. In deciding whether the trial court could reasonably conclude as it did on the basis of evidence before it, every reasonable presumption should be indulged in favor of the correctness of its action. See Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981).

The defendant’s attack on the factual findings of the trial court and her claims in that regard are without merit. A careful examination of the record, including the trial transcripts, discloses that there is evidence which, if deemed credible, supports the challenged findings of fact to which the trial court correctly applied the pertinent law. Its twelve page memorandum of decision thoroughly and reasonably analyzes the issues. Specifically, the issue of which party, if either, was the cause of the breakdown of the marriage was a question of fact for the trier, whose finding we will not disturb on the record before us. It is apparent that the trial court was presented with issues of credibility during the trial.

In addition, we perceive no error as claimed in the failure to award the defendant periodic alimony or in the division of property. The trial court’s memorandum of decision traces at length the course of the relationship of the parties including their familial, financial and employment history over the years, prior to entering its financial orders. The financial evidence, including the affidavits and other evidence, indicated that the trial court in this matter was determining a distribution of net assets involving approximately two million dollars. The trial court specifically stated that it had considered “the applicable case law and the provisions of [General Statutes] sections 46b-81 and 46b-82” in entering its orders. “The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). In doing so in this case, the trial court did not commit error as claimed.

There is no error.

In this opinion the other justices concurred.

       During oral argument, the defendant’s counsel abandoned one of her claims of error. That claim challenged the propriety of the ruling denying the defendant’s motion to open and vacate the judgment and for reargument, which ruling was made by a Superior Court judge other than the judge who actually heard and decided the case where the latter was ill and absent from the bench for some time. See Rostain v. Rostain, 213 Conn. 686, 688 n.3, 569 A.2d 1126 (1990).

       Reference should be made to our earlier opinion in this case where we set out the specific questions directed to the trial court to be articulated and where we fully discussed the background of this case and the claims of the parties going to the matter to be articulated.

       Despite the defendant’s claim to the contrary, a permissible view of the record supports the trial court’s articulation, as well as other factual determinations in this matter. As we noted in our earlier opinion, the trial of this case occupied approximately five days, during which both parties testified. Rostain v. Rostain, 213 Conn. 686, 687-88, 569 A.2d 1126 (1990). It is apparent from the transcript and the court’s memorandum of decision that the trial court was called upon to resolve conflicts in the evidence at the trial.

       Our remand in this case focused on this claim of error. In its articulation on remand, the trial court answered our first question by stating that “the [Stamford] condominium and dock were purchased [by the plaintiff] with inherited funds.” It also stated that “the funds for [this] were not funds ‘accumulated during the marriage’ as claimed by the defendant.”
      We had also asked the trial court to state “what effect, if any, its answer to the first question [had] on the overall disposition of the real and personal property of the parties as set out in its memorandum of decision.” Its articulation stated: “[I]t has no effect.”


author: Glass, J.

text:
    Nicholas R. Mainiero, Jr. v. Victor Liburdi, Warden
    (13850)
    Shea, Callahan, Glass, Covello and Hull, Js.

      Argued January 31
    decision released May 1, 1990

      John J. Buckley, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard F. Jacobson, assistant state’s attorney, for the appellee (state).
   Glass, J.

This is an appeal by the petitioner, Nicholas R. Mainiero, Jr., from the court’s denial of his petition for a writ of habeas corpus. The writ was denied because of the habeas court’s finding that the petitioner had failed to sustain the burden of proof on his claim that General Statutes § 53a-39 was unconstitutional, and on his claim of ineffective assistance of counsel at the time that he pleaded guilty to the charges resulting in his confinement. We find no error.

The petition for a writ of habeas corpus was heard on January 6, 1989, at the Superior Court in New Haven, and the following facts were developed at the hearing and found by the habeas court as reflected in its memorandum of decision and the record. The petitioner was arrested in March, 1984, and charged with sexual assault in the first degree, in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child, in violation of General Statutes § 53-21. Attorney Raymond Kelly, then a public defender, was appointed to represent the petitioner. Kelly had been a public defender for three years and had handled serious felony matters. Because the petitioner was at least sixteen years of age but had not reached his eighteenth birthday at the time that the charged offenses were allegedly committed, Kelly moved to have the petitioner treated as a youthful offender rather than proceed on the regular criminal docket. This motion was denied. Another motion by Kelly for a reduction of the petitioner’s bond was granted, however, and he was thereafter released. While the petitioner was out on bond, he was charged with two other offenses allegedly committed in February, 1985. These additional charges were assault in the first degree, in violation of General Statutes § 53a-59 (a), and larceny in the first degree, in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3).

On March 26, 1985, the petitioner’s trial commenced on the charges arising out of the March, 1984 incident — sexual assault and risk of injury. After jury selection, the petitioner, on March 27, 1985, “after being completely advised by Attorney Kelly, accepted a plea bargain to the charges on that file and entered an Alford Plea. . . . ” See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The court found that at the time the plea was entered, the petitioner’s uncle, Lawrence Mainiero, was his guardian ad litem. While he was handling the sexual assault and risk of injury charges, Kelly was aware of the additional February, 1985 charges pending against the petitioner. Although the petitioner had been arraigned on the additional charges, the file had not yet been transferred from Part B to Part A of the Superior Court. Nonetheless, after extensive discussions with the trial court and the state’s attorney, Kelly was able to effectuate an agreement that included the disposition of the February, 1985 charges with the disposition of the March, 1984 charges. The petitioner’s Part B file containing the February, 1985 charges was then transferred to Part A of the Superior Court for consolidation and disposition with the March, 1984 charges.

The trial court found that the plea bargain disposition of the charges arising out of the March, 1984 incident provided for the petitioner to receive a sentence of five years confinement for the risk of injury and sexual assault charges. The agreement further provided that the sentences for these charges were to run concurrently with the sentences received from the February, 1985 charges of larceny and assault, with an agreed maximum of ten years imprisonment. While the court informed Kelly that he could argue for a lesser sentence, the court stated that it felt that the sentence was fair and that the petitioner would need a favorable presentence investigation report in order to receive a lesser sentence. Nonetheless, Kelly continued to negotiate for a lesser period of actual incarceration. Finally, he was successful in obtaining an agreement encompassing both files for a total effective sentence of twelve years, execution suspended after eight years of imprisonment, and five years probation. The court found that Kelly discussed with the petitioner and his uncle, the guardian ad litem, the meaning of the agreed sentence. The court also found that Kelly informed the petitioner that he would be required actually to serve five and one-half years of imprisonment and that he could serve a lesser period of imprisonment only through programs that might be provided at the correctional institution.

On June 28, 1985, the petitioner was sentenced as agreed. The petitioner was then seventeen years old. He was confined at the Manson Youth Center until May, 1988, at which time he was transferred to the Cheshire Correctional Center. Prior to commencing this action, the petitioner applied for a community release program but was found ineligible because of the length of time remaining on his sentence. The petitioner will become eligible for community release, however, in December, 1990, when only thirty months of his sentence remain. The petitioner was also advised that a modification of his sentence, under § 53a-39, was unavailable to him because § 53a-39 precludes modification when a sentence, such as his, exceeds five years.

On appeal the petitioner now claims the following: (1) that General Statutes § 53a-39 is unconstitutional as interpreted and applied by the habeas court; (2) that the habeas court incorrectly applied the law, particularly § 53a-39, in accordance with the clear intent of the law; (3) that the trial court improperly canvassed the petitioner at the time that he pleaded guilty; and (4) that there was ineffective assistance of counsel when he pleaded guilty.

I

The central issue in this appeal is the petitioner’s claim that the habeas court’s interpretation and application of § 53a-39 was unconstitutional and not in accordance with its clear intent. We are unpersuaded. Specifically, the petitioner notes that under § 53a-39 a prisoner is eligible to apply for intensive probation only if his sentence is for a period of not less than two years nor more than five years. Furthermore, a prisoner is eligible to apply to the trial court for sentence modification pursuant to § 53a-39 only if his sentence is not in excess of three years. If a prisoner’s sentence is in excess of three years, then he must petition the sentence review division of the Superior Court pursuant to General Statutes § 51-195 in order to have his sentence modified.

The petitioner notes that, because his sentence is for twelve years, he is unable to apply for intensive probation or for sentence modification under § 53a-39. In addition, the petitioner is not eligible to have his sentence reviewed by the sentence review division because he entered a plea agreement and § 51-195 excludes from review “any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement.” The petitioner asserts that the habeas court erred in finding this statutory scheme constitutional. In particular, the petitioner contends that this statutory scheme is unconstitutional because it deprives him of the right to apply for intensive probation, and because it deprives him of a forum in which to argue that his sentence should be modified.

The eligibility restrictions on sentence review, sentence modification and intensive probation are statutory prescriptions established by the legislature. “ ‘A party contesting a statute’s constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt.’ State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); see Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972). . . . Tn examining the rationality of a legislative classification, we are bound to defer to the judgment of the legislature unless the classification is clearly irrational and unreasonable.’ State v. Dupree, supra; State v. Simmat, 184 Conn. 222, 224-25, 439 A.2d 915 (1981).” State v. Wright, 198 Conn. 273, 282, 502 A.2d 911 (1986).

The petitioner has failed to cite any authority that supports his assertion that the eligibility restrictions that the legislature has imposed upon intensive probation, sentence modification and sentence review are unconstitutional. We conclude that the legislature’s establishment of such eligibility restrictions was both rational and reasonable. As the habeas court correctly stated: “The legislature has a rational basis to impose whatever guidelines and procedures it deemed appropriate. Section 53a-39 used the severity of the crime and length of incarceration as guidelines for rehabilitation and public safety. . . . Accordingly, the distinctions drawn between sentences of different lengths and corresponding available alternatives or reduced punishments are rationally related. Section 53a-39 (rev’d 1989) is neither irrational nor arbitrary.” In sum, the legislature has prescribed a statutorily harmonious and constitutional scheme for sentence modification, sentence review and intensive probation.

II

The petitioner also argues that the trial court did not properly canvass him when he pleaded guilty. Specifieally, he contends that the trial court had a constitutional duty to inform him, at the time that he entered his pleas, of the consequences of those pleas in relation to § 53a-39. We disagree.

“Under Boykin [v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)], in order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights — jury trial, confrontation and self-incrimination.” State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). “There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.” State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987).

In sum, we hold that the trial court had no duty to inform the petitioner that, because of his sentence, he would not be eligible for sentence modification or intensive probation pursuant to § 53a-39. Such consequences of the petitioner’s plea are simply beyond the scope of the constitutional mandates required to effectuate a valid plea of guilty under Boykin v. Alabama, supra.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-39. reduction of definite sentence OF THREE YEARS OR LESS. DISCHARGE OF DEFENDANT. INTENSIVE PROBATION. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge shall refer any application of a defendant seeking placement in the intensive probation program to the office of adult probation for assessment and recommendations and may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year but not more than the unexpired portion of the sentence. A defendant sentenced for the commission of a class A felony shall not be eligible to be discharged on intensive probation. If a definite sentence includes suspension of incarceration after a period of at least two years but not more than five years, followed by a period of probation, the defendant may be placed in the intensive probation program in accordance with the provisions of this section, provided he shall have served at least one-half of the unsuspended portion of his sentence prior to release from incarceration. At the time the sentencing court or judge orders the defendant discharged on intensive probation, the court or judge may order that if the defendant successfully completes his intensive probation he shall be placed on regular probation for a period of time which is not more than the difference between (1) the time served plus the time which will be spent on intensive probation and (2) the terms of the initial sentence. Any defendant discharged on intensive probation shall comply with the conditions of probation ordered by the court or required by the office of adult probation, as provided in subsections (a) and (b) of section 53a-30.”

       “[General Statutes] Sec. 51-195. application for review of sentence. Any person sentenced on one or more counts of an information te a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”

       At oral argument, the petitioner abandoned his claim of ineffective assistance of counsel.


author: Shea, J.

text:
    Connecticut Business and Industry Association, Inc., et al. v. Commission on Hospitals and Health Care et al.
    (13769)
    Shea, Glass, Dupont, Spallone and Norcott, Js.
    Argued March 1
    decision released May 1, 1990

      Brian J. Donnell, with whom was Francis J. Mootz III, for the appellants (plaintiffs).

      Thomas J. Ring, assistant attorney general, and William J. Doyle, with whom were J. Michael Eisner, Paul E. Knag, H. Kennedy Hudner, Charles W. Peterson, Stephen E. Ronai, Theodore M. Space, Sally S. King, Michael Kurs, Ellen S. Aho and, on the brief, Clarine Nardi Riddle, attorney general, Richard J. Lynch,
      assistant attorney general, Mary A. Crossley, Paul D. Sanson, Richard A. O’Connor, Michael S. McKenna, Jeffrey Sienkiewicz, Elliott B. Pollack, David R. Levett and Frank W. Murphy, for the appellees (defendants).
   Shea, J.

The plaintiffs filed thirty-two appeals from final decisions of the defendant commission on hospitals and health care (CHHC) issued on December 6, 1988, establishing the rates to be charged for the fiscal year commencing October 1, 1988, by the thirty-two hospitals named as additional defendants in the appeals. Upon motions by the defendants, the trial court dismissed the appeals for lack of subject matter jurisdiction, concluding that the plaintiffs lacked standing under General Statutes § 19a-158, which specifically authorizes appeals from CHHC decisions by “[ajny health care facility or institution,” and that, in any event, they were not “aggrieved,” as required for an appeal under both § 19a-158 and General Statutes § 4-183 (a), the latter of which the plaintiffs had relied upon in bringing these appeals. We do not address the first ground of the decision, but agree with the trial court in regard to the second ground, the failure of the plaintiffs to establish aggrievement. Accordingly, we find no error.

The facts, which were presented to the trial court in the complaint and in affidavits and exhibits submitted in conjunction with the motions to dismiss, are not disputed. The plaintiffs are the Connecticut Business and Industry Association, Inc., which represents employers who provide health insurance to their employees; Blue Cross and Blue Shield of Connecticut, Inc., an insurer that provides health insurance to those insured under the policies it has issued; and the Insurance Association of Connecticut, a trade association whose members are domestic insurers that provide health insurance to their policyholders.

During August and September, 1988, CHHC issued the 1989 rate orders, applicable to each Connecticut hospital for the fiscal year October 1,1988, to September 30, 1989. These rates were established in accordance with formulae set forth in the statutes and regulations as applied to the data concerning its past financial operations that each hospital is required to submit to CHHC in order to implement the prospective payment system adopted in 1984 for hospitals in this state. See General Statutes §§ 19a-165 through 19a-165v. Thirty-two of the hospitals made timely requests for reconsideration of their rate orders. Each rate order had set forth the date on which a public hearing would be scheduled if a particular hospital should request reconsideration of its rates. CHHC granted the requests for reconsideration and issued temporary stays of the rate orders. The plaintiffs sought to participate in the reconsideration proceedings, but CHHC denied them this opportunity. During October, 1988, CHHC cancelled the public hearings on reconsideration that had been previously scheduled and conducted informal negotiations with the hospitals concerning their requests for reconsideration. As a result of these negotiations, CHHC entered into an “agreed settlement” with each hospital regarding its request for reconsideration and revised the original 1989 rate orders by increasing the rates in order to allow the hospitals additional revenue. These settlements were approved in formal decisions issued by CHHC in December, 1988.

The plaintiffs filed appeals from the revisions of the original hospital rate orders effectuated by the settlements. The thirty-two appeals were consolidated for the purpose of resolving the jurisdictional issues raised by the defendants’ motions to dismiss. Following the rendition of judgments dismissing each appeal for lack of subject matter jurisdiction, the plaintiffs filed a joint appeal seeking review of that determination.

It is fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 501, 503 A.2d 1161 (1986); Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 622, 419 A.2d 346 (1979). Both § 4-183 (a), upon which the plaintiffs rely for authority to appeal, and § 19a-158, which the defendants claim is the exclusive basis for appealing from a CHHC decision, expressly require that one be “aggrieved” by a “final decision” in order to appeal. In the absence of such aggrievement, the appeal must be dismissed for lack of subject matter jurisdiction. Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 177, 463 A.2d 613 (1983).

“The fundamental test by which the status of aggrievement for purposes of qualifying to take an appeal from an administrative order or regulation is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfuly establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974). The trial court concluded that the plaintiffs had not passed the first part of this test “in that they failed to demonstrate a specific, personal and legal interest in the subject matter of the decision as distinguished from a general interest, such as the concern of all members of the community as a whole.” The court found it unnecessary to consider the second part.

We agree with the trial court that the plaintiffs have no interest in the decisions of CHHC revising the hospital rates for the 1989 fiscal year beginning on October 1, 1988, that would satisfy the requirement of aggrievement. The fact that they are obligated contractually to pay the rates established by CHHC in these decisions gives them no more standing than their policyholders or other contractual beneficiaries would have to challenge the decision. These beneficiaries, in turn, have no greater interest than those members of the general public who have no health insurance and must pay the rates established. The financial impact of an increase in hospital rates is borne by all members of the public when they require hospitalization and are presented with bills for the services rendered. The agreements the plaintiffs have made to bear or share these hospitalization expenses with their policyholders or other contractual obligees do not create aggrievement for the purpose of an appeal unless those who pay directly for their hospitalization would be similarly aggrieved.

The plaintiffs do not contend that members of the public can be deemed aggrieved by an increase in hospital rates so that they would be entitled to appeal. The rate setting procedures designed by the legislature in establishing the prospective payment system for hospitals do not provide for public hearings before those rates are initially established by CHHC. The rates are determined entirely upon the basis of the data submitted by the hospitals. General Statutes §§ 19a-165a and 19a-165b. Such a procedure does not constitute a “contested case,” which is a prerequisite for an appeal pursuant to § 4-183 (a), upon which the plaintiffs rely. It is not a proceeding “in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . .”; (emphasis added); and thus does not satisfy the definition of a “contested case” in General Statutes § 4-166 (2). The statutes provided no opportunity for hearings before the initial rate orders were issued by CHHC in August and September, 1988, and the record does not indicate that hearings were actually held. The plaintiffs, whose aggrievement status is no greater than that of the public,. therefore, could not have appealed from those orders.

The plaintiffs maintain, however, that, because the defendant hospitals, after receiving the original rate orders, requested hearings before CHHC, pursuant to § 19a-165q-45 (b) of the Regulations of Connecticut State Agencies, for reconsideration of the rates initially established, the plaintiffs would have had the opportunity to participate at such hearings if they had been held. Subdivision (4) of this regulation provides that “payers and other interested parties may participate in accordance with the Commission’s rules of practice.” The regulation cannot be construed to elevate the status of payers, such as the plaintiffs, for purposes of aggrievement above that of the general public, however, because it also allows for participation by members of the public as “other interested parties.”

We need not determine whether, if the hearings had been held and the plaintiffs had participated in them, they might have been “aggrieved” and, therefore, could have appealed pursuant to § 4-183 (a). All the hospitals settled their disputes with CHHC without the necessity of any hearings, implicitly withdrawing their requests for reconsideration hearings. The plaintiffs, therefore, never were entitled to participate in any hearing to which the regulation relied upon would apply, once the hospitals no longer requested such hearings. Even if the mere filing of such a request were deemed to transform the proceeding before CHHC into a “contested case,” General Statutes § 4-177 (d) expressly provides for a disposition of a contested case by an “agreed settlement,” the procedure followed by CHHC here. This specific statutory authorization is a sufficient rebuttal of the plaintiffs’ claims that CHHC violated their rights by holding informal discussions with the hospitals culminating in settlements rather than rendering a formal decision after a hearing upon each of the thirty-two requests for reconsideration. Absent bad faith, collusion or other improprieties, none of which the plaintiffs here allege, the decision of an agency to settle a disputed case does not violate the rights of anyone, least of all one who is not a party to the proceeding. See Sendak v. Planning & Zoning Commission, 7 Conn. App. 238, 244, 508 A.2d 781 (1986).

We agree with the trial court that the plaintiffs are not aggrieved because they have failed to demonstrate a legal interest in the subject matter of the decisions approving the settlement agreements that can be distinguished from the interest of the general public in hospital rate increases.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 19a-158, when these appeals were commenced, provided: “appeals. Any health care facility or institution and any state health care facility or institution aggrieved by any final decision of said commission under the provisions of sections 19a-145 to 19a-156, inclusive, or sections 19a-165 to 19a-165q, inclusive, may appeal therefrom in accordance with the provisions of section 4-183, except venue shall be in the judicial district in which it is located. Such appeal shall have precedence in respect to order of trial over all other cases except writs of habeas corpus, actions brought by or on behalf of the state, including informations on the relation of private individuals, and appeals from awards or decisions of workers’ compensation commissioners.”

       General Statutes § 4-183 (a), when these appeals were commenced, provided: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”
      An amendment to this provision became effective on July 1,1989, after these appeals had been commenced, which, inter alia, removes the reference to a “contested case.”

       General Statutes § 4-166 (2), when these appeals were commenced, provided: “(2) ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include hearings referred to in section 4-168.”
      An amendment to this provision became effective on July 1,1989, which excludes “proceedings on a petition for a declaratory ruling under section 4-176” from this definition.

       Section 19a-165q-45 (b) of the Regulations of Connecticut State Agencies provides: “A hospital may request, within 10 calendar days of issuance of a rate order or within 10 calendar days of modification or denial for items (3) and (4), below, that the commission hold a hearing concerning those items in the rate order as follows:
      “(1) Items which were modified or denied by the commission and which were determined pursuant to a provision in the regulations which provides for the hospital to request that an item be considered in determination of the rate order and for the commission to approve, modify or deny such request; or,
      “(2) Items which were determined pursuant to a provision in the regulations which specifically provides for the commission to approve, modify or deny an amount provided to the commission by the hospital, except items specified in (3), below, or,
      “(3) Items modified or denied pursuant to section 19a-165q-32 (b) (4) of these regulations.
      “(4) Modifications to a hospital’s rate order by the commission, pursuant to section 19a-165q-28 (b) (6) and (7), of these regulations.
      “The hospital’s request shall specify in detail the reasons for such request. The commission shall hold such hearing and make a decision as to whether the request will result in a revision of the commission’s rate order issued pursuant to section 19a-165q-44 of these regulations no later than 45 days from the date of receipt of the request and additional information that the commission deems is required. At any hearing thereon, payers and other interested parties may participate in accordance with the Commission’s rules of practice. If the rate order is revised the hospital will implement such revision no later than 30 days from the date of such commission decision.” A

       General Statutes § 4-177 (d), when these appeals were commenced, provided: “Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.”
      This provision has been retained without substantive change in the amendment to § 4-177 that became effective on July 1, 1989.


author: Callahan, J.

text:
    Celestine Smith v. Nationwide Mutual Insurance Company et al. Hartford Casualty Insurance Company v. Celestine Smith
    (13856)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued March 8
    decision released May 1, 1990

      Martin M. Looney, with whom were Thomas F. Keyes, Jr., and, on the brief, John A. Keyes, for the appellant (Celestine Smith).

      Philip F. von Kuhn, for the appellee (Hartford Casualty Insurance Company).
   Callahan, J.

The sole issue in this appeal is whether Celestine Smith is a covered person under the terms of an insurance policy issued by Hartford Casualty Insurance Company (Hartford Casualty) to Robert Harrington. On the basis of stipulated facts, an arbitration panel concluded that Smith was not entitled to recover under the policy. Subsequently, Smith, the plaintiff in the first case, applied to the Superior Court to vacate, modify or correct the award. See General Statutes § 52-418 (a) (4). Hartford Casualty, the plaintiff in the second case, applied to the Superior Court to confirm the award. The trial court denied Smith’s application and confirmed the award of the arbitration panel. Smith thereafter took an appeal to the Appellate Court which this court transferred to itself, pursuant to Practice Book § 4023. We find no error.

According to the stipulation of facts, on March 22, 1986, Smith was a passenger in an automobile owned and operated by Eric S. Harrington when it was involved in a one car accident. She suffered severe injuries. Damages attributable to Smith’s injuries could exceed $260,000.

Eric Harrington was insured by Nationwide Mutual Insurance Company (Nationwide). Pursuant to its policy, Nationwide paid Smith $30,000 on behalf of its insured. Because Eric Harrington’s policy did not fully compensate her, she also pursued a claim under a policy issued by Hartford Casualty to Robert Harrington, the father of Eric Harrington. The policy issued by Hartford Casualty provided coverage, for two cars owned by Robert Harrington, neither of which was the automobile involved in the accident in question. As to each of Robert Harrington’s automobiles, the policy provided $100,000 of underinsured motorist coverage.

On appeal, Smith claims she is entitled to recover underinsured motorist benefits under Hartford Casualty’s policy issued to Robert Harrington. Her argument is based upon the premise that once a policy provides liability coverage to an insured, the underinsured motorist coverage therein is coextensive with the liability coverage. In support of her argument, Smith cites the liability coverage section of Hartford Casualty’s policy which provides that “[w]e will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” The policy defines “covered person” as “you or any family member for the ownership, maintenance or use of any auto or trailer.” Smith contends that Eric Harrington, as a family member, was a “covered” person under the terms of Robert Harrington’s policy, who became legally responsible for her injuries because of an automobile accident while driving “any auto.” Because Robert Harrington’s policy provides liability coverage to Eric Harrington while using “any auto,” Smith argues that the policy must also provide underinsured benefits to her as an occupant of that vehicle.

Smith’s analysis, however, crumbles at its foundation because Eric Harrington was not a “covered” person under the liability portion of Robert Harrington’s policy in these circumstances. That policy explicitly excludes from coverage “any vehicle other than your covered auto which is owned by any family member.” Thus, it did not provide liability coverage to Eric Harrington while he was driving his own vehicle, a vehicle not covered by the policy. Apparently recognizing this limitation, Smith cites our decision in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982), to argue that uninsured motorist coverage attaches to the insured person and therefore “an insured party may receive the benefits of a policy even though not occupying a vehicle insured under the policy.” Thus, Smith asks this court to invalidate the policy’s exclusion “in the context of uninsured/ underinsured motorist coverage.” This approach, she claims, would further the public policy embodied in General Statutes § 38-175c and § 38-175a-6 (a) of the Regulations of Connecticut State Agencies. We are unpersuaded by her arguments.

“Section 38-175c (a) (1) requires insurance, designated as ‘uninsured motorist coverage,’ for protection against operators of uninsured and underinsured motor vehicles . . . .” American Motorist Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990). Section 38-175c (a) (1) states: “Every policy shall provide insurance, herein called uninsured motorist coverage . . . for the protection of persons insured thereunder . . . . ” In Harvey v. Travelers Indemnity Co., we held that the public policy embodied in § 38-175c directs that uninsured motorist coverage is “person oriented” and therefore must be provided to insureds while they are occupants of insured vehicles or uninsured vehicles. Harvey v. Travelers Indemnity Co., supra, 248. “The coverage attaches to the insured person, not the insured vehicle.” Id. In Harvey, we ruled that the plaintiff, an insured under his mother’s policy, was entitled to coverage under that policy, even though he was injured while occupying a vehicle owned by his father which was not insured. We concluded that the exclusion in the policy, which purported to disclaim liability because the plaintiff was injured while occupying an uninsured vehicle, was invalid as against the public policy underlying uninsured motorist coverage in Connecticut. Id., 246, 249.

Unlike Harvey, however, Smith is not an insured under the defendant’s policy. The portion of the policy defining uninsured motorist coverage provides: “We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by a covered person; and 2. Caused by an accident.” Thus, in order for Smith to recover under the terms of the policy, she must satisfy both conditions. The policy defines “covered person” in this part as: “1. You or any family member; 2. Any other person occupying your covered auto; 3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.”

There is no dispute that the “you” in the first definition refers to Robert Harrington. Furthermore, Smith obviously is not a Harrington family member and therefore is not a “covered” person under the first definition. Similarly, when Smith was injured, she was not occupying a covered auto, i.e., one of the two automobiles described in the policy, and therefore does not fall within the second definition. Since she does not fall within either the first or second definitions, she automatically does not fall within the third.

Smith claims that these provisions are invalid because they “are attempted exclusions based upon the claimant’s occupancy of a particular vehicle or upon the naming of a particular vehicle in the policy.” We disagree. These provisions are not exclusions from coverage but rather simply definitions of who is an “insured” and a “covered person” under the terms of the policy. “ Tn an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed.’ Kansas-Nebraska Natural Gas Co. v. Hawkeye-Security Ins. Co., 195 Neb. 658, 664, 240 N.W.2d 28 (1976) [Citations omitted.] .... ‘It is apparent, then, that before the need for an exclusion arises, there must first be coverage within the defined scope of the policy.’ McMahon v. Boston Old Colony Ins. Co., 67 App. Div. 2d 757, 758, 412 N.Y.S.2d 465 (1979).” Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 588-89, 573 A.2d 699 (1990). Whether Smith is entitled to collect, pursuant to the uninsured motorist coverage provision of Hartford Casualty’s policy, is a question of coverage, not exclusion. See Lane v. Aetna Casualty & Surety Co., 203 Conn. 258, 264, 524 A.2d 616 (1987); Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 188, 520 A.2d 202 (1987). Because Smith is not “covered” under the terms of the policy, the trial court properly denied her claim for underinsured motorist benefits.

There is no error.

In this opinion the other justices concurred.

       The trial court concluded that because Celestine Smith failed to present either oral argument or a brief to support her claims against Nationwide Mutual Insurance Company (Nationwide), that portion of the claim was deemed abandoned. Nevertheless, on October 3,1989, the trial court granted Smith’s motion to join and consolidate the appeals in Smith v. Nationwide Mutual Insurance Company and Hartford Casualty Insurance Company v. Smith. Again, Smith has failed to brief any issue pertaining to Nationwide, therefore we will consider that appeal abandoned.

       Smith also received $20,000 from Prudential Insurance, pursuant to the underinsured motorist coverage provided by a policy on a car owned by her mother.

       “[General Statutes] Sec. 38-175c. uninsured motorist coverage. (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”
      Section 38-175a-6 of the Regulations of Connecticut State Agencies provides: “minimum provision for protection against uninsured MOTORISTS
      “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent. ...”