source: Caselaw Access Project

author: CALLAHAN, C. J. KATZ, J.,

license: Public Domain

text:
    SERVICE ROAD CORPORATION ET AL. v. DANIEL QUINN ET AL.
    (SC 15506)
    (SC 15607)
    Callahan, C. J., and Borden, Berdon, Katz and Peters, Js.
    Argued April 23
    officially released July 15, 1997

      Susan M. Cormier, with whom were Harold R. Cummings and Kenneth J. Bartschi, for the appellants (defendants).

      Steven W. Varney, with whom was Robert T. Rimmer, for the appellees (plaintiffs).
   Opinion

CALLAHAN, C. J.

The principal issue in this appeal is whether the trial court properly concluded that the plaintiffs suffered an “ascertainable loss of money or property,” as required to maintain an action pursuant to General Statutes § 42-110g, which is part of the Connecticut Unfair Trade Practices Act (CUTPA), as the result of the installation of several video surveillance cameras by the named defendant, Daniel Quinn, on his property. The cameras were focused on the front entrances to the plaintiffs’ two neighboring business establishments. We conclude, inter alia, that the trial court properly determined that the plaintiffs suffered an ascertainable loss as a result of Quinn’s actions. We therefore affirm the judgment of the trial court.

The record reveals the following facts. At all relevant times, the plaintiffs, Service Road Corporation and Cousin Vinnie’s, Inc., operated adjacent exotic dance clubs, known as Uncle Al’s and Cousin Vinnie’s, at 145 and 147 West Service Road in Hartford. Quinn operated an adult bookstore known as Danny’s Adult Book World next to Uncle Al’s and Cousin Vinnie’s at 151 West Service Road. During the time period in question, Quinn also owned and operated two exotic dance clubs, one, known as Kahoots, located in East Hartford, the other, known as Carrie-Ann’s, located in Vernon. Both Kahoots and Carrie-Ann’s competed with Uncle Al’s and Cousin Vinnie’s for patrons. The other defendant in this case, Gordon Debigare, worked for Quinn as the manager of Kahoots.

On September 7, 1993, the plaintiffs, through their attorney, notified Quinn and the Hartford police department that customers of Danny’s Adult Book World had been engaging in sexual activity and drug use at the rear of Quinn’s property at 151 West Service Road. Approximately two weeks later, Quinn installed two video surveillance cameras on the south side of his building, which faced the north side of the plaintiffs’ building, where the front entrances to both Uncle Al’s and Cousin Vinnie’s were located. One of the cameras was situated so that it pointed directly at, and focused on, the front door of Uncle Al’s, the other so that it pointed directly at, and focused on, the front door of Cousin Vinnie’s. A short time later, Quinn installed additional cameras on his building, four of which also focused on the front doorways of Uncle Al’s and Cousin Vinnie’s. Sometime in October, 1993, Debigare contacted at least two patrons of the plaintiffs’ clubs and informed them that he had seen them entering the plaintiffs’ clubs on the security television attached to the surveillance cameras at 151 West Service Road. Debigare also provided several of the plaintiffs’ patrons with free drink coupons that were redeemable at Kahoots. In addition, Debigare assisted in posting advertisements for Carrie-Ann’s on the side of the building at 151 West Service Road that faced the front entrances of Uncle Al’s and Cousin Vinnie’s.

The plaintiffs filed a two count complaint and an application for a temporary injunction against the defendants in the trial court. In the first count of their complaint, the plaintiffs alleged that the defendants’ actions tortiously interfered with the plaintiffs’ business, causing them irreparable loss and damage. In the second count of the complaint, the plaintiffs claimed that the defendants’ actions constituted unfair and deceptive acts and practices in the conduct of trade or commerce, in violation of CUTPA, General Statutes §§ 42-110a through 42-110q. In the first count, the plaintiffs sought damages, costs and temporary and permanent injunctions ordering the defendants to remove the cameras, or to adjust them so that they did not focus on the plaintiffs’ property. In addition, the plaintiffs sought temporary and permanent injunctions ordering the defendants to refrain from contacting the plaintiffs’ customers. In the CUTPA count, the plaintiffs sought both economic and punitive damages, temporary and permanent injunctive relief, attorney’s fees and costs, all under § 42-1 lOg. Thereafter, the plaintiffs amended their complaint by removing from both counts any claim for economic damages. Before trial, the parties stipulated to the entry of a temporary injunction against the defendants requiring the defendants to adjust the cameras that were capable of viewing the premises at 145 and 147. West Service Road so that at all times the cameras pointed downward at an angle of less than fifty degrees.

After a court trial, the trial court issued a memorandum of decision in which it found for the defendants on the first count of the plaintiffs’ complaint and for the plaintiffs on the second count. The court concluded that Quinn’s actions constituted an unfair trade practice in violation of § 42-110b. The court issued the permanent injunction sought by the plaintiffs, and also determined that the plaintiffs were entitled to attorney’s fees and costs from Quinn. The court found that at all times Debigare had acted simply as Quinn’s agent and declined to award attorney’s fees against him. The court also, in the exercise of its discretion, declined to award the plaintiffs punitive damages. On January 1, 1997, the court rendered judgment in accordance with its memorandum of decision and awarded the plaintiffs attorney’s fees against Quinn in the stipulated amount of $14,930.30. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The defendants claim that the second count of the plaintiffs’ amended complaint, which alleged a CUTPA violation, was insufficient as a matter of law because it contained no allegation that the plaintiffs had suffered an economic loss as a result of the defendants’ conduct. The defendants contend that a plaintiff claiming a CUTPA violation in the context of a competitive business relationship must allege some economic loss in order to satisfy the ascertainable loss requirement of § 42-1 lOg. They claim that the plaintiffs’ amended complaint did not include such an allegation. In addition, the defendants claim that the trial court’s factual determination that the plaintiffs had suffered an ascertainable loss was clearly erroneous in light of the evidence presented at trial. Consequently, they contend that the trial court’s judgment ordering a permanent injunction and awarding the plaintiffs attorney’s fees must be reversed. We are unpersuaded.

I

As an initial matter, we decline to address the defendants’ arguments concerning the legal sufficiency of the plaintiffs’ amended complaint at this late stage of the proceedings. “[A] judgment ordinarily cures pleading defects .... The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike ... is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. [I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.” (Citations omitted; internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 497, 646 A.2d 1289 (1994); see also Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992).

Instead of submitting a motion to strike the plaintiffs’ amended complaint, the defendants waited until the close of the plaintiffs’ evidence and then moved, pursuant to Practice Book § 302, for a judgment of dismissal for failure of the plaintiffs to make out a prima facie case. Thus, the defendants challenged the sufficiency of the plaintiffs’ evidence rather than the sufficiency of their pleading. Because the defendants did not raise their argument concerning the sufficiency of the plaintiffs’ pleading in the trial court and have failed to demonstrate that they in any way were prejudiced by the plaintiffs’ amended complaint, we conclude that the defendants have waived this claim. Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 496-97.

II

The defendants next contend that the trial court improperly concluded that the plaintiffs had sustained their burden of proving that they had suffered an ascertainable loss of money or property as required by § 42-110g. The defendants do not find fault with the trial court’s determination that Quinn’s actions constituted an unfair trade practice in violation of § 42-110b. They argue, rather, that the trial court committed clear error in concluding that the plaintiffs had proven that they had suffered an ascertainable loss as a result of Quinn’s installation of the surveillance cameras. We disagree.

We begin our analysis with the principle that CUTPA “is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit.” (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996). In Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 496-99, 656 A.2d 1009 (1995), we reaffirmed the principle, first stated in McLaughlin Ford, Inc. v. Ford, Motor Co., 192 Conn. 558, 566-67, 473 A.2d 1185 (1984), that CUTPA was designed to provide protection to businesses as well as to consumers. “CUTPA is not limited to conduct involving consumer injury. ... [A] competitor or other business person can maintain a CUTPA cause of action without showing consumer injury.” McLaughlin Ford, Inc. v. Ford Motor Co., supra, 566-67.

Section 42-110b (a) prohibits persons from engaging in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Section 42-110g (a) affords a cause of action to “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . .” We have stated that “[t]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981). An ascertainable loss is a “deprivation, detriment [or] injury” that is “capable of being discovered, observed or established.” (Internal quotation marks omitted.) Id., 613. “[A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known. . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss.” Id., 614. A plaintiff need not “prove a specific amount of actual damages in order to make out a prima facie case [under CUTPA].” Id., 612-13.

With these principles in mind, we turn to the validity of the trial court’s finding that the plaintiffs suffered an ascertainable loss. In its memorandum of decision, the trial court stated: “At trial, representatives of the plaintiffs testified that they had no evidence that Quinn’s actions caused them a loss of profits. This may be due in part to the entry of a temporary injunction on April 22,1994, under the terms of which the cameras were pointed away from the plaintiffs’ front doorways. Not surprisingly, the plaintiffs also failed to present the testimony of any patron or prospective patron concerning the effect Quinn’s cameras had on their willingness to enter the plaintiffs’ exotic dance clubs. Nevertheless, the court finds that Quinn’s cameras, when pointed at the entrance to the plaintiffs’ exotic dance clubs, were intended to and probably would have a negative impact on the plaintiff s’ business because they would deter certain prospective patrons from entering the clubs.” (Emphasis added.)

The plaintiffs had the burden to prove, by a preponderance of the evidence, that they suffered an ascertainable loss of money or property as the result of the defendants’ actions. In order to satisfy that burden, the plaintiffs needed to convince the trial court that it was more likely than not that the plaintiffs suffered such a loss. See Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 701, 651 A.2d 1286 (1995). A fair reading of the trial court’s memorandum of decision indicates that the court was persuaded that it was more likely than not that Quinn’s installation of cameras on the building at 151 West Service Road and the monitoring of the entrances to the plaintiffs’ establishments caused prospective patrons to refrain from entering the plaintiffs’ establishments. The trial court found that Quinn’s actions “probably would have a negative impact on the plaintiffs’ business because they would deter certain prospective patrons from entering the clubs.” We read this to mean that the trial court found, as a matter of fact, that Quinn’s installation of cameras did deter prospective customers from patronizing the plaintiffs’ establishments. The defendants claim that this factual finding is not supported by the evidence that was adduced at trial. We disagree.

“[A] trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

“It is axiomatic that the trier of fact may draw reasonable and logical inferences from the facts proven. . . . In doing so, finders of fact are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct .... Our review of the fact finder’s inferences is limited to determining whether the inferences drawn are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 700-701. “In a civil case, proof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” (Internal quotation marks omitted.) Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 704-705, 638 A.2d 44 (1994).

We conclude that the trial court reasonably could have inferred from the evidence presented during the trial that the defendants’ actions caused prospective patrons to refrain from entering the plaintiffs’ establishments at 145 and 147 West Service Road. The plaintiffs had presented evidence that they operated two exotic dance clubs at those addresses. They also presented evidence, which the trial court found credible, that Quinn had installed the surveillance cameras on his building at 151 West Service Road with the intention of interfering with the plaintiffs’ establishments. In addition, the plaintiffs presented evidence that the cameras on the building at 151 West Service Road were visible to a person standing in the entrances to both Uncle Al’s and Cousin Vinnie’s and that such a person would believe that he or she was being filmed. Moreover, the plaintiffs presented Alan Tannenbaum, the treasurer of Service Road Corporation and the president of Cousin Vinnie’s, Inc., who testified that the cameras on Quinn’s building at 151 West Service Road intimidated customers of Uncle Al’s and Cousin Vinnie’s, Inc. Tannenbaum testified that a number of patrons had informed him that they made sure that they entered his establishments with their backs toward Quinn’s cameras. He also testified that he believed that some patrons had not entered his establishments because of the cameras, but that he did not know of any particular patrons who had refrained from doing so. We conclude, on the basis of the totality of the evidence presented at trial, that the trial court’s factual determination that Quinn’s installation of cameras on the building at 151 West Service Road deterred prospective patrons from entering the plaintiffs’ establishments was not clearly erroneous.

We next address the question of whether the trial court’s factual finding satisfied the ascertainable loss requirement of § 42-110g. We have never addressed the meaning of the phrase “ascertainable loss” in a similar context, in which one business owner claims that another has engaged in an intentional unfair trade practice that has caused the first business to lose potential customers. Nevertheless, we conclude that, in the business context, a plaintiff asserting a CUTPA claim may satisfy the ascertainable loss requirement of § 42-110g by establishing, through a reasonable inference, or otherwise, that the defendant’s unfair trade practice has caused the plaintiff to lose potential customers. A loss of prospective customers constitutes a “deprivation, detriment [or] injury” that is “capable of being discovered, observed or established.” (Internal quotation marks omitted.) Hinchliffe v. American Motors Corp., supra, 184 Conn. 613. Such a loss appears to be precisely the type of business injury for which the legislature intended to provide redress when it enacted CUTPA. See Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 496-97. The fact that a plaintiff fails to prove a particular loss or the extent of the loss does not foreclose the plaintiff from obtaining injunctive relief and attorneys’ fees pursuant to CUTPA if the plaintiff is able to prove by a preponderance of the evidence that an unfair trade practice has occurred and a reasonable inference can be drawn by the trier of fact that the unfair trade practice has resulted in a loss to the plaintiff. In the present case, the trial court found that the defendants engaged in an intentional unfair trade practice and drew the reasonable inference that the unfair trade practice had caused the plaintiffs to lose potential customers. We conclude, therefore, that the plaintiffs satisfied their burden of proving that they had suffered an ascertainable loss.

After properly finding that the plaintiffs had suffered an ascertainable loss as the result of the defendants’ unfair trade practices, the trial court exercised its discretion, pursuant to § 42-110g, to issue a permanent injunction and to award the plaintiffs attorney’s fees. The defendants have failed to persuade us that the trial court abused its discretion in so doing.

The judgment is affirmed.

In this opinion BORDEN, BERDON and PETERS, Js., concurred.

KATZ, J.,

dissenting. I agree with the majority as to the meaning of “ascertainable loss” in the context of a claim pursuant to the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and how such loss may be proven without presenting evidence of specific economic losses. I disagree, however, with the majority’s conclusion that the trial court correctly found that the plaintiffs had suffered an ascertainable loss entitling them to seek an injunction and attorney’s fees under CUTPA, in light of the trial court’s conclusion in its memorandum of decision that there had been no evidence presented to support a finding that the plaintiffs had suffered any loss whatsoever. I believe that the record demonstrates that the plaintiffs proved only that there was an unfair trade practice and that the offending practice was undertaken with the intent that they should suffer such a loss.

“Under CUTPA, ‘[t]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.’ . . . Hinchliffe v. American Motors Corporation, 184 Conn. 607, 615, 440 A.2d 810 (1981).” Conaway v. Prestia, 191 Conn. 484, 494, 464 A.2d 847 (1983). To allow the unfair trade practice itself to be offered as proof of that loss would negate the effect of having such a threshold requirement. In this case, it is clear from the trial court’s comments that it based its findings in regard to ascertainable loss on the fact that there was an unfair trade practice and that the practice was apparently intended to deter customers from entering the plaintiffs’ businesses. I disagree with the majority’s conclusion that this evidence was sufficient.

As an initial matter, I acknowledge that our review of the trial court’s findings is limited. “[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996). This limited review does not mean, however, that we may not conclude that the trial court’s findings were purely speculative, and had no basis in the evidence adduced at trial. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). . . . Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993).” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 301.

As for the present case, “[i]t is axiomatic that a claimant seeking [relief under CUTPA] bears the burden of proving, with reasonable certainty, those [ascertainable losses] sustained as a result of [the unfair practice].” Conaway v. Prestia, supra, 191 Conn. 493-94. It is true that such proof may be inferred from the circumstances of the case. “The test of the sufficiency of proof by circumstantial evidence [however] is whether rational minds could reasonably and logically draw the inference. . . . The proof need not be so conclusive that it precludes eveiy other hypothesis. It is sufficient if the proof produces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact to be inferred is true.” (Citations omitted; internal quotation marks omitted.) Puro v. Henry, 188 Conn. 301, 310, 449 A.2d 176 (1982). “Although the elements of a cause of action may be established on the basis of inferences drawn from circumstantial evidence; see, e.g., Cayer v. Salvatore, 150 Conn. 361, 363, 189 A.2d 505 (1963); such inferences [however] ‘must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture.’ Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959). An inference must have some definite basis in the facts. See Latham v. Hankey, 117 Conn. 5, 10-11, 166 A. 400 (1933).” Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); see also Kucson v. Tomkievicz, 100 Conn. 560, 567-68, 124 A. 226 (1924) (“ ‘if [the evidence] is a mere speculation and a mere probability and uncertainty, why, no verdict should be found upon it’ ”).

In its memorandum of decision, the trial court stated that despite the lack of direct evidence of any loss, “[the named defendant Daniel] Quinn’s cameras, when pointed at the entrance to the plaintiffs’ exotic dance clubs, were intended to and probably would have a negative impact on the plaintiffs’ business because they would deter certain prospective patrons from entering the clubs.” The majority translates “probably would have a negative impact” into a factual finding that the cameras actually deterred prospective customers from entering the plaintiffs’ clubs and concludes that there was sufficient evidence adduced at trial to support this finding. A review of the entire evidence, however, reveals that such a finding has no basis in fact but, rather, is purely speculative and, therefore, clearly erroneous.

In 195 pages of trial transcript, only two pages contain testimony from the plaintiffs related to possible, ascertainable, losses. Alan Tannenbaum, the treasurer of the named plaintiff Service Road Corporation and the president of the plaintiff Cousin Vinnie’s Backroom, Inc., testified that the cameras intimidated customers. When asked if he knew this for a fact, however, he was unable to point to any single instance of a customer being deterred from entering the club. In fact, the only evidence Tannenbaum presented concerning customer intimidation was that “a couple of people” had told him that they were aware of the cameras but, nevertheless, had entered the clubs, albeit with their backs to the cameras. When asked if customers were still coming to the clubs, Tannenbaum could only respond: “Some people haven’t, I’m sure.” The only other discussion as to the possible intimidation of customers was in Quinn’s testimony, wherein he was asked by the plaintiffs’ attorney to comment on whether he believed that the cameras he had installed might have an effect on the plaintiffs’ businesses. No evidence, direct or circumstantial, was adduced in either colloquy to support even an inference that customers were actually deterred by the presence of the cameras, or any other actions by the defendants, from entering the plaintiffs’ businesses. Indeed, any finding to such effect is merely speculation built upon speculation, because the plaintiffs themselves had admitted that they did not know whether they had lost any customers or business or whether any such loss, even if ascertainable, could be attributed to the defendants’ actions. Rather than relying on the evidence before it, the trial court, in effect, concluded that, as a matter of law, the existence of the cameras would have a detrimental effect on the plaintiffs’ businesses and, therefore, did have a detrimental effect on the plaintiffs’ business. Such a conclusion dispenses with the requirement of CUTPA that the plaintiffs prove an ascertainable loss in addition to proving an unfair trade practice causing such a loss. See footnote 2 of this opinion.

Therefore, I respectfully dissent.

       General Statutes § 42-110g provides in relevant part: “Action for damages. Class actions. Costs and fees. Equitable relief. Jury trial, (a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. . . .

      “(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys’ fees. In any action brought

        under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.” (Emphasis added.)

       The plaintiffs apparently amended their complaint in response to a discovery motion by the defendants seeking income tax returns.

       General Statutes § 42-110b provides in relevant part: “Unfair trade practices prohibited. Legislative intent, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . .”

       The permanent injunction issued by the court provided: “After a trial in the above-captioned action, it is hereby ORDERED:
      “1. Daniel Quinn, Gordon Debigare and their agents, servants and employees shall not point any video camera, closed circuit television camera or other camera located on the defendant Quinn’s property at 151 West Service Road, Hartford, Connecticut, in the direction of the plaintiffs’ premises at 145 or 147 West Service Road. All such cameras which are visible to persons entering 145 or 147 West Service Road shall be inverted in such a fashion that the base of the housing of such camera shall at all times point downward at an angle not to exceed fifty (50) degrees from the vertical plane of the south wall of 151 West Service Road.
      “2. Daniel Quinn, Gordon Debigare and their agents, servants and employees shall not contact the plaintiffs’ customers concerning the presence of the aforementioned cameras or the fact that the customers may have been or may in the future be observed on said cameras.”

       There are two docket numbers in this case because the defendants initially appealed to the Appellate Court following the trial court’s memorandum of decision. We transferred that appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The defendants subsequently filed a second appeal to the Appellate Court from the trial court’s rendering of judgment in accordance with its memorandum of decision. We granted the defendants’ motion, to which the plaintiffs consented, to consolidate both appeals and incorporate into the second appeal the briefs filed in the first appeal.

       Practice Book § 302 provides: “Dismissal in Court Cases for Failure to Make Out a Prima Facie Case
      “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       The trial court reserved decision on the motion until after the defendants had presented their case.

       Indeed, the defendants have not argued, either in their briefs or at oral argument, that they were prejudiced by a defect in the plaintiffs’ amended complaint.

       In Larsen Chelsey Realty Co., we reviewed the legislative history that suggested that the legislature intended CUTPA to protect businesses as well as consumers: “According to Representative Howard A. Newman, who reported the CUTPA legislation out of committee to the House of Representatives, the act ‘gives honest businessmen great protection [against] deceptive or unscrupulous [businessmen] who by unfair methods of competition and deceptive advertising, etc., unlawfully divert trade away from law abiding businessmen.’ 16 H.R. Proc., Pt. 14, 1973 Sess., p. 7323. Other supporters of the bill made similar comments. See, e.g., Conn. Joint Standing Committee Hearings, General Law, Pt. 2, 1973 Sess., p. 724, remarks of Stuart Dear, a member of the board of directors of the Connecticut Consumer Association (CUTPA will ‘assist the businessman in not losing out to those members of the business community who won’t play fair’); Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1978 Sess., pp. 307-308, remarks of Assistant Attorney General Robert M. Langer (CUTPA covers transactions ‘between one business and another business’).” Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 497-98.

       In its memorandum of decision, the trial court stated: “The plaintiffs claim that the primary, if not sole, purpose of Quinn’s camera installation was to intimidate and harass their customers and harm their businesses and, therefore, that such installation constituted an unfair or deceptive practice within the meaning of § 42-110b. The court agrees.
      “Quinn has claimed that he installed the cameras purely for security reasons. However, the court does not find that claim to be credible. A disproportionately large number of the video cameras were placed on the side of Quinn’s building which was nearest to Uncle Al’s and Cousin Vinnie’s with no camera surveillance of the [entrance] to Quinn’s store or its main parking lot. A security expert who testified at the trial described Quinn’s camera configuration as ‘absurd’ in terms of providing optimum security surveillance of Quinn’s premises.
      “A business is certainly permitted to install security cameras for its own protection and cannot be accused of an unfair practice if one or more of those cameras incidentally picks up activity on the premises of a nearby business. In this case the purpose of the camera installation was to interfere

        with the plaintiffs’ business and the security benefits to the defendant Quinn’s property [were] incidental. Thenumber and placement ofthe video cameras described above, the temporalproximity of the camera installation to a complaint directed at Quinn by the plaintiffs, and the contacting of the plaintiffs’ patrons concerning their appearance on Quinn’s video cameras, indicates apñma'ry intention to impact the plaintiffs’ business.’’ (Emphasis added.)

       The plaintiffs presented testimony from Thomas Luddy, a security expert, who testified as follows:
      “Q. When you first went to the premises and conducted your inspection, you did that inspection in part from the premises at 145/147 West Service Road, in other words, looking across the driveway to 151?
      “A. Yes, I did.
      “Q. Were you able, sir, during that inspection, to stand in the doorways of the premises of Uncle Al’s and Cousin Vinnie’s and to look at the cameras mounted on 151 West Service Road?
      “A. Yes, which I did.
      “Q. And would you tell the court from those two vantage points where the cameras or the housings appeared to be directed?
      “A. At least a couple of them and the third one that was panned and tilted, the 180 degree one, certainly I would feel like I had been on Candid Camera, so to speak. If I were standing in the doorway, I would have been viewed.”

       The relevant colloquy went as follows:
      “Q. . . . Is it my understanding, Mr. Tannenbaum, that your complaint is that at least two of the cameras on Mr. Quinn’s building at 151 West Service Road point at the two entrances to your building?
      “A. Yes.
      “Q. And why is that a problem for you?
      “A. Because it intimidated our customers.
      “Q. How long have customers, in fact, stopped coming to your business because of their complaint to you about these cameras?
      “A. I don’t think there is any way of knowing that. It’s like going to a restaurant, you have a lousy meal, you don’t tell anybody and you don’t go back.
      “Q. So, has any customer come to you and said, Mr. Tannenbaum, I’m no longer coming to your business because I’m afraid of those cameras across the alley?
      “A. I’ve had a couple of people tell me they make sure they walk in with their back to the camera.
      “Q. But they’re still coming in?
      “A. Some people haven’t, I’m sure.
      “Q. But you don’t know of any?
      “A. I can’t tell you for a fact.”

       In Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 748-49, 474 A.2d 780 (1984), the plaintiff, a corporation, brought a CUTPA action against the defendant, a business competitor, alleging that the defendant had engaged in unfair trade practices that resulted in the plaintiffs losing potential customers. The trial court found, however, that the plaintiff had not lost any potential customers as a result of the defendant’s actions. Id., 749. Because our analysis in Sportsmen’s Boating Corp. was limited to whether the trial court’s factual finding was clearly erroneous, we did not have occasion to address whether a loss of potential customers would constitute an ascertainable loss of money or property as required by § 42-110g.
      In Hinchliffe v. American Motors Corp., supra, 184 Conn. 612-16, we analyzed the ascertainable loss requirement at length, but in the context of a consumer claim under CUTPA rather than in the context of a claim by one business against another. Our analysis in Hinchliffe, therefore, does not provide us with an answer to the question posed in the present case.

       In its memorandum of decision, the trial court stated: “At trial, representatives of the plaintiffs testified that they had no evidence that [the named defendant Daniel] Quinn’s actions caused them a loss of profits. . . . [T]he plaintiffs also failed to present the testimony of any patron or prospective patron concerning the effect Quinn’s cameras had on their willingness to enter the plaintiffs’ exotic dance clubs.”

       Although I understand that it was not the intent of the majority, I am nevertheless concerned that, because this decision relies on evidence that proves only that there was an unfair trade practice, the court’s holding may be read to support the argument that a plaintiff may prove an ascertainable loss entitling him or her to relief under CUTPA merely by proving that there was an unfair trade practice undertaken with the intent to bring about such a loss.

       During cross-examination by the defendants’ attorney, Tannenbaum testified regarding his belief as to the effect the cameras may have had on potential customers:
      “Q. Is it my understanding, Mr. Tannenbaum, that your complaint is that at least two of the cameras on Mr. Quinn’s budding at 151 West Service Road point at the two entrances to your building?
      “A. Yes.
      “Q. And why is that a problem for you?
      “A. Because it intimidated our customers.
      “Q. How long have customers, in fact, stopped coming to your business because of their complaint to you about these cameras?
      “A. I don’t think there is any way of knowing that. It’s like going to a restaurant, you have a lousy meal, you don’t tell anybody and you don’t go back.
      “Q. So, has any customer come to you and said, Mr. Tannenbaum, I’m no longer coming to your business because I’m afraid of those cameras across the alley?
      “A. I’ve had a couple of people tell me they make sure they walk in with their back to the camera
      “Q. But they’re still coming in?
      “A. Some people haven’t, I’m sure.
      “Q. But you don’t know of any?
      “A. I can’t tell you for a fact.”
      Neither of the plaintiffs testified on direct examination regarding the possible loss of customers.

       The transcript contains the following colloquy between Quinn and the plaintiffs’ attorney:
      “Q. Okay. Sir, when those cameras were installed ... did you take into account the possible effect these cameras may have had on customers of [the plaintiffs]?
      “A. Absolutely not.
      “Q. Why not?
      “A. Well, I have cameras on all my businesses, including the exterior.
      “Q. All right . . . [d]o the housings of cameras on your other buildings point to other establishments, other businesses?
      “A. Absolutely.
      “Q. They do? Okay, sir, do you think that the kind of business that [the plaintiffs] are engaged in, similar to your own, would make a difference in deciding whether or not a patron or customer might be troubled by having a housing or housings pointed at him or at her?
      “A. Absolutely not.”
      Following this colloquy, the trial court interrupted Quinn’s testimony to state that, notwithstanding Quinn’s opinion, it found that the plaintiffs’ establishments were such that “having a camera trained on you as you’re entering or exiting, the nature of the business could well make a difference and that people might not want to have a camera due to the nature of the business. You need go no further trying to prove that.”


text:
    STATE OF CONNECTICUT v. TRAMLUS COLVIN
    (SC 15525)
    Callahan, C. J., and Norcott, Katz, Palmer and McDonald, Js.

      Argued April 24
    officially released July 15, 1997

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellant (state).

      Jefferson D. Jelly, with whom was Terence P. Sexton, for the appellee (defendant).
   Opinion

CALLAHAN, C. J.

The defendant, Tramlus Colvin, was charged in a two count information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and with possession of narcotics with intent to sell within 1500 feet of a housing project in violation of General Statutes § 21a-278a (b). On October 8, 1994, the defendant filed a motion to suppress any and all tangible evidence seized from his automobile while it was parked on Sergeant Street in Hartford. On November 2, 1994, in an oral ruling, the trial court granted the defendant’s motion to suppress, to which the state excepted. On November 15, 1994, the charges against the defendant were dismissed, and the trial court granted the state’s motion for permission to appeal from the judgment of dismissal. The Appellate Court affirmed the trial court’s granting of the defendant’s motion to suppress and the subsequent judgment of dismissal. State v. Colvin, 42 Conn. App. 537, 542, 680 A.2d 1360 (1996). We granted the state’s petition for certification to consider whether the Appellate Court, under the circumstances of this case, properly concluded that the cocaine discovered in the defendant’s automobile must be suppressed. State v. Colvin, 239 Conn. 922, 682 A.2d 1007 (1996). We reverse the judgment of the Appellate Court.

The following facts, which are recited in the Appellate Court’s opinion, are relevant to the determination of the issue presented in this case. “On September 16, 1992, several [Hartford police] officers who were in the area conducting an investigation observed the defendant drive to 235 Sergeant Street and park his car. They then watched the defendant walk to 91 Atwood Street, 200 feet away from his car, and sit on a stoop. The officers observed the defendant for twenty-five minutes. During their surveillance, the officers did not witness a sale of narcotics or any act giving the appearance of a sale. At the close of their surveillance, Detectives Keith Knight and Henry Martin approached the defendant. The defendant knew them as police officers, saw their sidearms and badges, and addressed one of the officers by his first name. One of the detectives ordered the defendant to accompany them to his automobile. The defendant reluctantly complied and walked with the officers to the vehicle. While standing on the sidewalk next to the defendant’s automobile, Martin looked through the window of the vehicle and observed in plain view a bag containing a white substance later determined to be a narcotic substance. The officers seized the bag and charged the defendant with possession of narcotics.” State v. Colvin, supra, 42 Conn. App. 539.

On the basis of these facts, the trial court concluded that the defendant’s detention, while being escorted to his automobile, was a de facto arrest. The trial court then stated: “[T]here appears to now be fruits of a poisonous tree which apparently have to be suppressed, and so the court concludes that . . . those items . . . are suppressed for purposes of this trial.” Subsequently, on November 15, 1994, the trial court dismissed the charges against the defendant and granted the state’s motion for permission to appeal.

On appeal, the Appellate Court concluded that the trial court properly granted the defendant’s motion to suppress and the subsequent judgment of dismissal. State v. Colvin, supra, 42 Conn. App. 542. The Appellate Court based its decision on the state’s inability to prove that the discovery of the narcotics was sufficiently attenuated from the allegedly unlawful arrest to cleanse it of its taint. The attenuation doctrine, as the Appellate Court noted, contains three factors that courts use to determine whether evidence is sufficiently attenuated from the alleged illegality to cleanse it of its taint: (1) “the temporal proximity of the illegal police action and the discovery of the evidence”; (2) “the presence of intervening circumstances”; and (3) “the purpose and flagrancy of the official misconduct.” (Internal quotation marks omitted.) Id., 541; see Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Cates, 202 Conn. 615, 621, 522 A.2d 788 (1987).

With respect to the three factors of the attenuation doctrine, the Appellate Court stated: “ [Application of these factors to the present case supports the conclusion that the discovery of the evidence in the defendant’s vehicle was not sufficiently attenuated from the illegal arrest to be purged of the taint. First, the discovery of the evidence occurred shortly after the defendant’s arrest. Second, there were no intervening circumstances between the arrest and the discovery of the contraband. Moreover, as in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), a continuum of police action existed in that, from the time the police ordered the defendant to go to his car until the discovery of the evidence, the officers did not allow the defendant to leave. Finally, by effectuating an illegal arrest, the police officers engaged in misconduct similar to that in Brown v. Illinois, supra, 422 U.S. 605. As in Brown, this illegal arrest had a quality of purposefulness: ‘The impropriety of the arrest was obvious . . . .The arrest, both in design and in execution, was investigatory.’ Id.” State v. Colvin, supra, 42 Conn. App. 541-42.

On appeal, the state contends that “the trial court should not have suppressed the cocaine because it was not obtained by exploitation of [the defendant’s] detention, but rather, by virtue of the fact that it was exposed in plain view in a car parked on a public road.” The defendant argues, in support of the trial court’s suppression of the cocaine, that the evidence was derived from his illegal seizure, and, therefore, should be considered fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Additionally, he claims that the evidence is not admissible by reason of any recognized doctrine, such as: (1) independent source; see Silverthome Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319 (1920); (2) inevitable discovery; see Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); or (3) attenuation. See Brown v. Illinois, supra, 422 U.S. 603. We agree with the state that the seizure was not the result of the defendant’s detention, and, therefore, conclude that the trial court incorrectly granted the defendant’s motion to suppress. Accordingly, we reverse the judgment of the Appellate Court.

Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is “clearly erroneous in view of the evidence and pleadings in the whole record . . . .” Practice Book § 4061; State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see also State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).

“Under the exclusionary rule, evidence must be suppressed if it is found to be the ‘fruit’ of prior police illegality. Wong Sun v. United States, supra, [371 U.S.] 485. All evidence is not, however, a ‘fruit of the poisonous tree’ simply because it would not have been discovered but for the illegal action of law enforcement officials. Id., 487-88; see State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). ‘Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ Wong Sun v. United States, supra, 488, quoting Maguire, Evidence of Guilt (1959) p. 221.” State v. Cates, 202 Conn. 615, 619-20, 522 A.2d 788 (1987). The initial determination is, therefore, whether “the challenged evidence is in some sense the product of illegal government activity.” United States v. Crews, 445 U.S. 463, 471, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); see also State v. Miller, 29 Conn. App. 207, 216, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993) (“[b]ecause the seizure of the gun did not owe its origin in material part to the [illegal] Terry stop, the Terry stop cannot provide a basis for excluding the gun from evidence”).

Our decision in this case is controlled by our previous decision in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986). In Graham, “two Waterford police officers went to the defendant’s home and searched the premises pursuant to a ‘search and seizure warrant.’ Although the police did not find any of the stolen property anticipated, the defendant was arrested at that time. While they were leaving the premises, the officers saw the defendant’s car across the street parked in a lot accessible to the public. They walked over to the car and looked into the rear seat with the aid of a flashlight. On the seat they noticed a rope which matched the description of the one used in the robbery. On the basis of this observation, they obtained a warrant and returned later to seize the rope.” Id., 19.

The defendant in Graham argued that his arrest was unlawful, that the discovery of the rope was the “fruit” of that unlawful arrest and, therefore, that the rope must be suppressed. We concluded, however, that “[e]ven if we were to assume, without deciding, that the arrest of the defendant was illegal, we cannot agree with the defendant that the rope is inadmissible. The plain view ‘search’ of the car was wholly unconnected with the arrest other than by the fact that it occurred shortly thereafter. The arrest did not generate a confession leading the police to the rope in the car; cf. Brown v. Illinois, [supra, 422 U.S. 590]; nor did the search of the car take place ‘incident to arrest.’ Cf. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) .... We conclude, therefore, that the rope was not the ‘fruit’ of an allegedly illegal arrest.” (Citation omitted.) State v. Graham, supra, 200 Conn. 20.

We find the same to be true in the present case. The trial court heard no evidence that would support a conclusion that the discovery of the cocaine was the product of the allegedly unlawful arrest and the trial court made no such finding. More specifically, there is no evidence of any exchange between the defendant and the police officers during the allegedly unlawful detention that might be construed as causing the police officer to look into the defendant’s automobile. There is clear evidence, moreover, that the police officers knew which automobile was the defendant’s before approaching him on Atwood Street. As in Graham, the allegedly unlawful arrest is not causally connected with the discovery of the evidence.

The defendant, however, attempts to distinguish Graham by focusing on the fact that the officers in Graham had a valid search warrant for the defendant’s dwelling and that the police activity in that case, including the viewing of the rope, was surrounded by an air of legitimacy. The defendant contrasts this to the “unsavory sense of purposefulness” in the present case. The defendant’s characterizations of the action of the police, however, are inapposite to the issue before us. We acknowledge that “the purpose and flagrancy of the official misconduct” should be considered when evaluating an attenuation argument. It is not the state’s claim, however, that the discovery of the cocaine was sufficiently attenuated to divest the discovery from the taint of the allegedly unlawful arrest. The state argues, instead, that the discovery of the evidence simply was not the result of the allegedly unlawful police conduct.

In response to the state’s contention that the “plain view” doctrine is applicable to this case, the defendant argues that “[s]ince the police officers came to be in a position to view the contraband because of the illegal arrest, the resultant seizure of the contraband must be suppressed.” For the purposes of this argument, the defendant presumes that the illegal arrest placed the officers next to the defendant’s car. As noted previously, there is no evidence in the record to support this assumption. The only link between the allegedly unlawful arrest and the discovery of the cocaine that is supported by the evidence is that the defendant was allegedly being unlawfully detained when the police observed the cocaine. The defendant, however, has provided no authority to support the contention that the concurrent nature of two causally distinct events, in and of itself, is a sufficient basis in this case to conclude that the discovery of the cocaine was tainted by the allegedly unlawful arrest.

Additionally, “[t]he defendant’s position contravenes the exclusionary rule’s purpose of ensuring fairness and balancing the interests of the state and the defendant. ‘Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.’ Nix v. Williams, [supra, 467 U.S. 447]. ‘When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.’ Id., 443.” State v. Rodriguez, 239 Conn. 235, 250, 684 A.2d 1165 (1996).

If we were to adopt the defendant’s position and suppress the cocaine as the fruit of an illegal arrest, we would place the police in a worse position than they would have been if the allegedly unlawful police conduct had not occurred, because if the allegedly unlawful arrest had not occurred, the police would have been free to approach the defendant’s automobile and view the cocaine. Nix v. Williams, supra, 467 U.S. 447. In essence, the defendant asks us to conclude that the allegedly unlawful arrest made the police officers’ presence on the sidewalk adjacent to the car unlawful. We decline to adopt such a position.

We determine that the cocaine in this instance was not discovered as a result of the allegedly unlawful arrest. The police had a perfect right to be where they were and to observe the cocaine, notwithstanding any arrest. The suppression of the cocaine, therefore, is not warranted because it was not seized as a consequence of police misconduct. We conclude, therefore, that the trial court improperly granted the defendant’s motion to suppress because there is no evidence to establish a causal connection between the allegedly unlawful arrest and the discovery of the cocaine.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to deny the motion to suppress and to reinstate the information and proceed according to law.

In this opinion NORCOTT, PALMER and MCDONALD, Js., concurred.

KATZ, J.,

dissenting. I disagree with the majority opinion that the seizure of the narcotics was not the result of the defendant’s detention. Because the evidence was seized as a consequence of police misconduct and its discoveiy was not sufficiently attenuated to divest it of the taint of the defendant’s unlawful arrest, I would affirm the judgment of the Appellate Court.

The exclusionary rule is a judicially prescribed remedial measure that prohibits the introduction in a criminal prosecution of evidence obtained by law enforcement officers through unconstitutional means. “As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The rule reaches primary evidence obtained as a direct result of an illegal search or seizure; Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652 (1914); as well as evidence later discovered and found to be derivative of an illegality or “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Evidence is not to be excluded, however, if the connection between the illegal police conduct and the discovery and seizure of the evidence is “so attenuated as to dissipate the taint.” Id. When evidence is obtained as a direct result of an unconstitutional search or seizure, it is subject to exclusion if it is “tainted” by the prior illegality, which determination depends on whether the challenged evidence was “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Emphasis added; internal quotation marks omitted.) Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

The Supreme Court of the United States has never held that evidence is to be suppressed as “ ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Id.; Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Brown v. Illinois, 422 U.S. 590, 599, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). By the same token, those Supreme Court cases make it clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence. Segura v. United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).

What the majority opinion ignores in the present case is the “but for” language that is essential to the holding of the previously cited Supreme Court cases. Although the court in Wong Sun v. United States, supra, 371 U.S. 488, rejected a “but for” test for determining whether to suppress evidence gathered following a fourth amendment violation, that court nevertheless imposed the test as a threshold matter to the issue of whether the seized evidence was a “fruit.” After the court determines that, but for the illegality, the evidence “would not have come to light,” only then does the court inquire into whether the evidence is tainted. Id. The focus turns to whether the prior illegality and the seizure of the evidence in question were so interconnected as to render the evidence tainted, or whether the connection between the illegality and the seizure of the evidence was so attenuated as to render the evidence untainted.

In the present case, the majority relies on the state’s argument that the discovery of the evidence was not at all connected to the illegal seizure of the defendant because, as in State v. Graham, 200 Conn. 9, 20, 509 A.2d 493 (1986), the police knew which automobile belonged to the defendant, and, therefore, presumably would have looked into the car even if they had not arrested the defendant. The majority’s treatment of the issue, however, is couched in language generally used to invoke exceptions to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); see also S. LaCount & A. Girese, “The ‘Inevitable Discovery’ Rule, An Evolving Exception to the Constitutional Exclusionary Rule,” 40 Albany L. Rev. 483 (1976); R. Maguire, “How to Unpoison the Fruit—The Fourth Amendment and the Exclusionary Rule,” 55 J. Crim. L. Criminology & Police Sci. 307, 313-17 (1964). Such analysis implicitly recognizes that a determination has already been made that the seizure was connected to the initial illegality.

In my view, the proper analysis should focus on whether the seizure of the evidence owed its origin in material part to the seizure of the defendant. The trial court found that “[o]ne of the detectives ordered the defendant to accompany them to his automobile. The defendant reluctantly complied and walked with the officers to the vehicle.” State v. Colvin, 42 Conn. App. 537, 539, 680 A.2d 1360 (1996). Under the circumstances of this case, the trial court found that this was a sufficient causal connection between the arrest and the discovery of the evidence. I see no reason to disagree with that determination as a matter of law, based upon the facts the trial court reasonably could have found. See Segura v. United States, supra, 468 U.S. 806 (“if all the contents of the apartment were ‘seized’ at the time of the illegal entry and securing [of the premises], presumably the evidence [being] challenged would be suppressible as primary evidence obtained as a direct result of that entry”). This is not a case in which the chain between the challenged evidence and the primary illegality is long or in which the linkage is being demonstrated by sophistic argument.

Indeed, relying on the various factors specified by the Supreme Court to assess attenuation, I consider the record in this case to be devoid of any evidence of intervening circumstances to otherwise break the causal connection. The record supports the temporal proximity of the arrest and the seizure of the evidence, the first factor generally examined by the Supreme Court when faced with the question of attenuation. Brown v. Illinois, supra, 422 U.S. 604. Another factor considered by the Supreme Court is whether there existed intervening circumstances, such as an intervening lawful arrest; see Johnson v. Louisiana, 406 U.S. 356, 365, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972); or consent. See State v. Fortier, 113 Ariz. 332, 335-36, 553 P.2d 1206 (1976) (where record indicated defendant voluntarily opened trunk of car without request by officer, evidence was not seized through exploitation of illegal stop). In the present case, there is no evidence of any break in the chain leading from the defendant’s arrest to the seizure of the evidence. Accordingly, I agree with the trial court that there is no antidote to the poison in this fruit.

Although there may indeed have been different theories upon which the state could have relied to circumvent the fourth amendment violation, including, but not limited to, inevitable discovery, the trial court rejected the state’s proposition in that regard and expressly found that the state had not “ ‘demonstrate^!] that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.’ ”

Therefore, I respectfully dissent.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, tire real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       We granted the state’s petition for certification to appeal limited to the following question: “Whether the Appellate Court, under the circumstances of this case, properly ruled that cocaine discovered in the defendant’s automobile must be suppressed?” State v. Colvin, supra, 239 Conn. 922.

       The parties have agreed to assume, arguendo, that there was an illegal seizure of the defendant on Atwood Street. Accordingly, we have no occasion to consider the trial court’s finding that the police action was a de facto arrest.

       This lack of evidence favors the state. In Alderman v. United States, 394 U.S. 165, 183, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), the United States Supreme Court discussed the proper allocation of burdens in a motion to suppress the fruit of a poisonous tree. The court stated: “The United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time petitioners acknowledge that they must go forward with specific evidence demonstrating taint. ‘[T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.’ Nardone v. United States, 308 U.S. 338, 341, [60 S. Ct. 266, 84 L. Ed. 307] (1939).” (Emphasis added.) Alderman v. United States, supra, 183. The defendant in the case at issue here has not sustained his burden of production. There is no evidence indicating a causal connection between the arrest and the discovery of the cocaine.

       “The police, ‘no less than any other citizen,’ have a right to be on a public street, ‘stand beside the defendant’s car and peer in.’ State v. Kuskowski, 200 Conn. 82, 85, 510 A.2d 172 (1986).” State v. Sailor, 33 Conn. App. 409, 416, 635 A.2d 1237, cert. denied, 239 Conn. 911, 642 A.2d 1208 (1994). “It is well established . . . that if a police officer is in a public area and . . . peer[s] into a vehicle through a window, his action does not constitute a ‘search’ and, as a result, is not considered violative of the car owner’s fourth amendment rights.” State v. Graham, supra, 200 Conn. 20.

       On appeal, the defendant makes the additional claim that article first, § 7, of the Connecticut constitution provides broader protection with respect to the suppression of fruits of unlawful searches and seizures than do the fourth and fourteenth amendments to the United States constitution. The defendant, however, provides no support for his claim that the Connecticut constituí ion should be interpreted to require suppression of evidence that was not the product of an allegedly unlawful arrest. We, therefore, decline to address this issue. State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991).

       During the pendency of this appeal, it has come to our attention that the defendant, whose actions on September 16, 1992, are the subject of this case, was charged with a crime that did not exist on that date, i.e., possession of narcotics with intent to sell within 1500 feet of a housing project in violation of § 21a-278a (b). See Public Acts 1992, No. 92-82 (effective October 1, 1992). Because this issue was not briefed or argued before us, we do not address it, but remand the case with the understanding that this ex post facto issue will be addressed on remand.

       This is the same procedural step that was passed over by the court in State v. Graham, supra, 200 Conn. 20.


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. JOHN VIVO III
    (SC 15397)
    Callahan, C. X, and Norcott, Katz, Palmer and McDonald, Js.
    Argued April 24
    officially released July 15, 1997

      Dante R. Gallucci, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, John Vivo III, appeals from the judgment of conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and commission of a class A and B felony with a firearm in violation of General Statutes § 53-202k. The trial court sentenced the defendant to a total effective sentence of seventy-five years imprisonment. The defendant’s appeal was transferred to this court from the Appellate Court pursuant to General Statutes § 51-199 (b) (3) and Practice Book § 4027. The sole issue in this appeal is whether the trial court properly denied the defendant’s motion to suppress evidence. We affirm the judgment of the trial court.

The state presented the following evidence. On February 23, 1994, at approximately 7:15 p.m., Yolanda Martinez and William Terrón were crossing a courtyard at the Evergreen Apartments in Bridgeport when the defendant and two other persons, armed with semiautomatic weapons, ran up to them. Martinez identified the two others as Joel Rodriguez and Eric Floyd. The defendant pulled Terrón near a fence where he shot Terrón ten times, killing him. At the same time, Rodriguez shot Martinez in the hand and in the upper right arm, before he and Floyd ran to a nearby car. The defendant then ran over to where Martinez lay on the ground and shot her in the legs three times. The defendant thereafter joined the others, and they fled in a car.

At trial, the state introduced into evidence, among other exhibits, nineteen nine millimeter cartridges. The cartridges had been seized from the defendant’s apartment in the Green Homes Apartments in Bridgeport pursuant to a search warrant. The defendant unsuccessfully moved to suppress all items seized from his apartment under the fourth amendment to the federal constitution, made applicable to the states through the fourteenth amendment.

In an oral decision denying the defendant’s motion, the trial court found the following facts. “[0]n that evening, February 23, 1994, information had developed that [the defendant] had been involved in the homicide that we are dealing with here, where it was known to the police that there were one or two other persons also involved with him, [who] were described as armed and dangerous, [and] one of whom . . . apparently, or they had information, had been involved in other homicides.

“At that time the police did not know the whereabouts of any of the suspects. They happened to obviously have information that the defendant's] father was a member of the Bridgeport police department, and a member of that department went to his home that evening. And the father was in fact off duty and in bed. But he came to headquarters at the request of his superiors and they advised [the father] that they had information that [the defendant] was possibly involved in a homicide and they were looking to find him and/or to question him, and asked the father’s assistance in locating him.

“The father indicated that he thought that the defendant might be at the Green [Homes] apartments where apparently [the defendant’s mother] had once lived. [The father], along with a number of other police officers, went to that apartment .... The father knocked on the door, [and] asked the [defendant] if they could come in. And apparently the [defendant] opened the door and allowed them in. The father came in with other police officers.

“[The defendant] was immediately cuffed. There is some question as to when exactly he was arrested. Sergeant [Joseph] Sherbo indicated that he immediately told [the defendant] that he was under arrest, possibly not specifically for . . . any particular crime, but he testified he did tell the defendant he was under arrest. The father testified he didn’t hear those words, but there is no question that the [defendant] was in fact cuffed.

“The [defendant] remained in the apartment for about two minutes, two to three minutes after they arrived. Other officers fanned out throughout the apartment, basically was the testimony, to see whether or not any of the other persons involved might have been within the apartment. They were doing that obviously for their own protection, number one, and also to apprehend anybody else who might be there.

“There is no question that officers went into the various rooms in the apartment, including the defendant’s father who actually went into a closet ... in the defendant’s bedroom. All of them were told ... at the beginning don’t touch anything because they were going to seek a search warrant to go back into the apartment later on.

“There is some question as to whether or not there may have been some improper searches by certain officers at the time. The only testimony the court heard was the testimony of the father, who indicated that he himself found the bulletproof vest in a closet, [but] was told by a supervising officer to put it back because they were going to get a warrant to search the apartment later on. He said he overheard conversations about officers possibly finding a bag or plastic bag where some bullets were contained, although he said he didn’t actually see it. He also testified that after the [defendant] was removed he observed other officers looking into drawers in the kitchen area of the [apartment],

“The court [concludes], on the basis of the evidence, although Sherbo didn’t see any of this, that probably some type of an improper search of drawers within the bedroom and/or kitchen took place, where it appears that other bullets and/or a [ski] mask were found. As I have already indicated, the father is the one that went in the closet which I think he had a right to go into to make sure nobody was in there, found the bulletproof vest and was immediately told to put it back.”

The trial court concluded that the police lawfully entered the defendant’s apartment and that they searched the apartment for other suspects in order to ensure their own protection. The court found that “[i]t was clear from the very beginning . . . that once they had found [the defendant] in that apartment . . . they were going to go back and seek a warrant and search that apartment.” The court, therefore, based its denial of the defendant’s motion to suppress “on the fact that the police did eventually seek a warrant. There is no claim that that warrant was not aproper search warrant. ... It is clear in reviewing that warrant that there is nothing in the warrant affidavit mentioning any of the items that might have been viewed by the police prior to their getting the warrant. There is nothing in there about a vest. Nothing in there about bullets, and nothing in there about a mask. So the probable cause to search that apartment was based on other materials contained within that search warrant affidavit. . . . That leads the court to the conclusion that this search was going to take place. The police had always planned to undertake it. They did not require anything that they found in the apartment prior to getting the warrant to establish probable cause. And under the exception to the fourth amendment of inevitable discovery the court rules that the search was proper . . . .”

It is undisputed that the police left the apartment to obtain a search warrant for the premises and that an officer was posted outside the door of the apartment to secure the premises. Sherbo and another detective prepared a search warrant affidavit containing the following information. On February 23, 1994, at approximately 7:40 p.m., police responded to a report of gunshots at the Evergreen Apartments. There, they found Terrón, who had suffered multiple gunshot wounds to the head, chest and back and was pronounced dead at the scene. The police also found Martinez, who had suffered multiple gunshot wounds to the lower part of her body. Martinez told Detective Donald Jacques that she and Terrón had been shot by the defendant, that the defendant had an Uzi type weapon and that two other persons had been involved in the shootings. Other witnesses had heard rapid-fire gun shots during this episode. The police also found numerous nine millimeter bullet fragments at the scene. After interviews with several citizens, the police learned that the defendant might be living at the Green Homes Apartments. The police then went to the Green Homes Apartments, where, at apartment 423 in building four, they found and arrested the defendant. The affidavit concluded by stating that apartment 423 was being secured while the police sought a search warrant.

The defendant contests neither the legality of his arrest nor the sufficiency of the probable cause supporting the search warrant. The defendant argues, however, that the taint of the initial, illegal search cannot be purged by the subsequent search warrant and that, therefore, the items seized pursuant to the search warrant must be suppressed. The defendant contends that, without a search warrant, the police, while arresting him, were entitled to search only those areas of the apartment where an individual with a weapon could be posing a threat; see Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990); and that the police search of his apartment at the time of his arrest led to the illegal discovery of the nineteen nine millimeter cartridges that were introduced into evidence. Under the exclusionary rule, the defendant argues, the cartridges should have been suppressed.

We agree with the trial court that even if the police did conduct an impermissible search of the apartment when they arrested the defendant, the evidence that was later seized pursuant to the search warrant need not be suppressed. We do so because that seizure was not the fruit of any illegal search that may have occurred. In Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the United States Supreme Court held: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Emphasis added.)

The independent source doctrine and the inevitable discovery doctrine are recognized exceptions to the exclusionary rule and are “closely related.” Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Those doctrines are based on the premise that “the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.” (Emphasis added.) Id. The independent source doctrine and the inevitable discovery doctrine, however, have distinct applications in relation to the exclusionary rule.

Independent source, in the exclusionary rule context, means that the tainted evidence was obtained, “in fact,” by a search untainted by illegal police activity. Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988). Inevitable discovery in that same context means that the evidence was illegally obtained, but would have been discovered legally had the legal means to do so not been aborted because of the illegal seizure. Id.

While the trial court alluded to the inevitable discovery doctrine, its analysis and findings indicate that it held the search to be proper pursuant to the independent source doctrine. In the case of a search conducted pursuant to a search warrant, “[t]he two elements that must be satisfied to allow admission [under the independent source doctrine] are: (1) the warrant must be supported by probable cause derived from sources independent of the illegal entry; and (2) the decision to seek the warrant may not be prompted by information gleaned from the illegal conduct.” United States v. Johnson, 994 F.2d 980, 987 (2d Cir. 1993); Murray v. United States, supra, 487 U.S. 542. The defendant here does not contest that the warrant was supported by probable cause derived from sources independent of the illegal search. In fact, the defendant argues that the items observed by police during the initial search were “carefully not listed” on the warrant affidavit. The defendant argues, however, that “[b]ased upon the testimony at the suppression hearing, it would strain credulity to believe that the initial illegal search did not prompt the obtaining of the warrant.” The defendant contends that initially the police had no information as to his residence and had not applied for either an arrest warrant or a search warrant when they went to his apartment on what he terms an “investigative fishing expedition.”

The trial court, however, explicitly rejected this conclusion. The court found that the police contacted the defendant’s father to ascertain where the defendant might be found. Based on the information the defendant’s father provided, the police went to the apartment to see if the defendant lived there. When the police found the defendant there, it was their intention to secure a search warrant for the premises after the defendant’s arrest. In the words of the trial court, “[i]t was clear from the very beginning . . . that once they had found [the defendant] in that apartment . . . they were going to go back and seek a warrant and search that apartment.” The officers had been instructed by their superiors not to touch anything at the apartment because a search warrant would be applied for later. The court therefore found: “That leads the court to the conclusion that this search was going to take place. The police had always planned to undertake it.”

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is ‘clearly erroneous in view of the evidence and pleadings in the whole record . . . .’ Practice Book § 4061; State v. Oquendo, [223 Conn. 635, 645, 613 A.2d 1300 (1992)]; State v. Kyles, supra, 221 Conn. 660. The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. State v. Oquendo, supra, 645; State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). Because a trial court’s determination of the validity of a . . . search implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. See State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Damon, 214 Conn. 146, 154, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990); State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990).” State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).

At the suppression hearing, Bridgeport police officer John Vivo, Jr. (Vivo), the defendant’s father, testified that he was asleep on the night of February 23, 1994, when other police officers came to his home and informed him that his son was involved in a shooting and that the police did not know where to locate his son. Vivo was unsure where his son lived, but his fiance provided the address of an apartment where the defendant’s mother had lived and stated that she thought the defendant lived there. Vivo, along with other officers wearing bulletproof vests and carrying shotguns, went to that apartment. The police were concerned that another suspect who was possibly involved in other homicides might also be in the apartment. When Vivo, leading the police, knocked on the apartment door, the defendant opened the door and admitted them. The police quickly went through the apartment as Sherbo handcuffed and arrested the defendant. Vivo was told by his supervisors not to touch anything as he looked through the apartment for other individuals because they were going to obtain a search warrant. Vivo did find a bulletproof vest in a bedroom closet and removed it, but was told to return it to the closet as a search warrant would be sought. Vivo also testified that he overheard other police officers say they had found a bag of bullets on or in a dresser, although he did not know exactly where they had found the bullets.

Sherbo testified that after speaking with Vivo, he went to the Green Homes Apartments with several detectives and uniformed officers to locate the defendant. There, Vivo knocked on the door to apartment 423 and the police identified themselves to the defendant. The defendant opened the door and Vivo entered the apartment followed by the other police. The defendant was immediately placed under arrest and handcuffed. Sherbo further testified that he conducted a search of the apartment looking for weapons or individuals with weapons. The defendant, after only one or two minutes, was then taken from the apartment, and Sherbo also left with the purpose of obtaining a search warrant for the premises.

Sherbo also denied searching any drawers and did not believe that he or other officers had seen any ammunition or weapons at the premises before he left to obtain the search warrant. He denied that the search warrant was based upon anything that he had seen in the apartment while he was there. Sherbo testified that the search warrant affidavit was based on the shooting incident and that he was seeking evidence regarding those shootings. The affidavit stated that the items sought pursuant to the warrant were ammunition, weapons, written instruments showing control of the apartment and specifically a nine millimeter handgun and nine millimeter ammunition, evidence of which was at the crime scene.

We do not agree with the defendant that these facts fail to support the trial court’s finding that, once the police found the defendant at apartment 423, they then intended to secure a warrant for those premises. It is reasonable to conclude that, prior to finding the defendant at these premises, the police could not determine that the defendant lived there and, consequently, they had no probable cause to obtain a warrant for those premises. The situation changed when the defendant was found at apartment 423. The police then had the grounds and reason to secure a warrant for those premises. Vivo had been told not to touch anything in the apartment because a warrant was going to be sought. The decision to seek a search warrant for evidence of the killing of Terrón and the multiple shootings of Martinez at whatever location the defendant was found that night was entirely plausible. See United States v. David, 943 F. Sup. 1403, 1417-18 (E.D. Va. 1996). Furthermore, such a warranted search was “obviously relevant” to the investigation and undertaken in recognition by the police “that a warrant was necessary.” United States v. Johnson, supra, 994 F.2d 987. While some officers may have overextended their protective search of the premises, the trial court reasonably could, and did, find that the officer seeking the warrant had no knowledge of the fruits of any such search. See United States v. Curtis, 931 F.2d 1011, 1013-14 (4th Cir. 1991). As the United States Supreme Court stated in Murray v. United States, supra, 487 U.S. 542 n.3: “To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred . . . We conclude, therefore, that the trial court’s findings are not clearly erroneous and that the court made the required findings to support our conclusion that the nine millimeter cartridges were discovered based on a source independent of any unlawful search.

The defendant strongly argues that applying the independent source doctrine to these facts allows police to sear ch a home for incriminating evidence and then later to apply for a search warrant to seize any evidence discovered. He argues that this makes a “sham” of the fourth amendment. In Murray v. United States, supra, 487 U.S. 539, the petitioners also argued that the independent source doctrine would remove “all deterrence to, and indeed positively encourage, unlawful police searches.” The petitioners believed that under the rubric of the independent source doctrine, police would make unlawful searches to determine whether it would be worth their time to seek a warrant for the premises. Id. The United States Supreme Court disagreed. “An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.” Id., 540.

Here, the state was faced with the additional burden of demonstrating that independent of any unlawful search, the police intended to seek a search warrant for the defendant’s apartment in addition to establishing probable cause for the warrant independent of that unlawful search. After hearing the evidence, the trial court properly found the state had met that burden. In these circumstances, we conclude that the defendant’s fourth amendment rights were not violated.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
      General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       The defendant claims that a ski mask that was also discovered during the warranted search was introduced into evidence. A ski mask was seized by police and introduced in the defendant’s first trial, which ended in a mistrial, but the ski mask was not introduced in the defendant's second trial at which he was convicted.

       The defendant does not make a state constitutional claim.

         The trial court noted that the defendant had not claimed that the police entry was unlawful.

       “Both the independent source rule and the inevitable discovery rule rest on assumptions that if the law enforcement agencies involved had eschewed the illegal activity, they nevertheless would have procured the evidence at issue. But the independent source rule applies only upon proof that in actual fact the officers did not obtain the challenged evidence as a result of the primary illegality; the inevitable discovery exception assumes that the evidence was in fact obtained as a consequence of the primary illegality but is invoked by proof that — hypothetically — if the officers had not engaged in the primary illegality, they would nevertheless although in a different manner have obtained the challenged evidence.” (Emphasis in original.) 1 C. McCormick, Evidence (4th Ed. 1992) § 180, p. 739; see Murray v. United States, supra, 487 U.S. 540.