27 Conn. App. 427 | Conn. App. Ct. | 1992
The sole issue of this appeal is whether the trial court improperly ruled that a warrant for the search of the defendant’s house was insufficient to establish probable cause to believe narcotics and narcotic paraphernalia would be found there. After the trial court granted the defendant’s motion to suppress, the state represented that prosecution of the defendant for the crime of possession of cocaine with intent to sell could not proceed without the suppressed evidence. Accordingly, the trial court dismissed the case and granted the state leave to appeal pursuant to General Statutes § 54-96.
The following facts are relevant to the disposition of this appeal. On April 2, 1990, the police submitted an affidavit and application for a search warrant to the Superior Court, requesting authorization to search the defendant’s house at 36 Clinton Avenue in Old Saybrook. The items sought under the warrant were cocaine, cocaine related paraphernalia and other items commonly used in drug related transactions. The court,
The following information contained in the affidavit is relevant to the disposition of this appeal. On the basis of information obtained from known, reliable informants together with evidence obtained through controlled narcotic buys, the affiant police officers asserted that Benjamin Perez and the defendant had been jointly engaged in the dealing of narcotics, principally cocaine, since the early part of 1990. Perez’ house at 34 Clinton Avenue in Old Saybrook had been the subject of a search and seizure warrant on or about August 18, 1989, when a gun, packaging material for narcotics, a scale and cash, which had been part of a controlled buy, were found there. According to the information in the affidavit from Harris and Barrows, a reliable informant first implicated the defendant in Perez’ narcotics business as a “relative [who] cooperated with Benji [Perez] in the sale of narcotics” during the month of December, 1989. The defendant resides at 36 Clinton Avenue in Old Saybrook. The affidavit goes on to reveal that the defendant allegedly was first seen taking part in a drug transaction during the first week of March, 1990, when he collected money for the purpose of buying cocaine and then turned this money over to Perez, who then took the purchasers to his house at 34 Clinton Avenue.
The second time the defendant is specifically alleged to have been involved in drug transactions occurs in paragraph fourteen of the affidavit. There, a known
The third occasion of the defendant’s activity with Perez is discussed in paragraph sixteen. Again, an informant with police money who was under surveillance met the defendant at 36 Clinton Avenue. Thereafter, a “Hispanic male from 34 Clinton Avenue” brought cocaine from that address to the defendant’s house and sold the drugs to the informant.
During oral argument on the motion to suppress, the defendant successfully contended that the warrant application failed to establish probable cause to believe that narcotics and paraphernalia were present in the defendant’s house. The trial court, Hendel, J., agreed with the defendant that the information in the warrant failed to establish a sufficient nexus between the cocaine itself and the defendant’s house. We disagree.
The standards that apply to the proper issuance of a warrant to search any property are well established and have been concisely set forth in our recent decision in State v. Castano, 25 Conn. App. 99, 100-101, 592 A.2d 977 (1991). These standards can be summarized as follows: (1) there must be probable cause that fruits, instrumentalities or evidence of a crime will be found in the place to be searched; (2) “probable cause to search” exists if (a) the items sought are connected with criminal activity or will assist in a particular apprehension or conviction, and (b) there is probable cause to believe that the items sought to be seized will be found in the place to be searched; (3) the existence of probable cause is determined by the facts stated in the
The defendant argues that our Supreme Court’s decision in State v. DeChamplain, 179 Conn. 522, 427 A.2d 1338 (1980), is dispositive of the present case in that here, as in DeChamplain, the recitation of facts in the application and affidavit in support of the search warrant was insufficient to connect his house with the drugs. We disagree.
“In DeChamplain, the court found a lack of probable cause to believe that drugs were located in the defendant’s apartment, because the only fact establishing a nexus to the apartment was a single telephone call to the defendant at his apartment in which he received an order for the purchase of drugs.” State v. Brown, 14 Conn. App. 605, 619, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). This case is quite distinguishable from DeChamplain. Here, the documentation supporting the warrant application clearly established an ongoing connection and relation
“Actual observations of illegal activity or contraband in the premises to be searched . . . are not required to establish probable cause. . . . The nexus between the premises and the evidence can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [the evidence].” (Citations omitted; internal quotation marks omitted.) State v. Castano, supra, 103-104, quoting State v. Cou
Finally, the defendant urges that a ruling against him will assault the fourth amendment’s proscription against unreasonable searches and seizures by allowing police to search any place with which a person might have even the most tenuous association. With full appreciation of the sanctity of a person’s house, a concept that is the essence of that constitutional amendment; Warden v. Hayden, 387 U.S. 294, 301, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); State v. Marsala, 216 Conn. 150, 164, 579 A.2d 58 (1990); State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963 (1983); we find only that, on the facts of this case, the issuing court had a substantial basis from the facts included within the four comers of the application for the search warrant to conclude there was probable cause that the defendant’s house contained the evidence of criminal activity sought by the police. Our opinion is not to be construed as an
“[WJhen a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” State v. Barton, 219 Conn. 529, 545, 594 A.2d 917 (1991). In determining whether probable cause exists to conduct a search, we apply the “totality of the circumstances” test, which our Supreme Court recently adopted in State v. Barton, supra, where it overruled State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). State v. Anziano, 26 Conn. App. 667, 671, 603 A.2d 415 (1992). “In a doubtful or marginal case, however, our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.” State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991); State v. Anziano, supra, 672. Our role is to determine whether the affidavit here presented a substantial basis for the issuing judge’s conclusion that probable cause existed. State v. Anziano, supra. We conclude that the warrant at issue was sufficient with respect to its allegations of probable cause and, accordingly, the trial court improperly found otherwise.
The judgment is reversed and the case is remanded with direction to deny the motion to suppress.
In this opinion the other judges concurred.
It is unclear from paragraph eleven in the affidavit, from which these allegations derive, whether the informant observed the transaction inside the defendant’s house at 36 Clinton Avenue or what precisely occurred at Perez’ house.