27 Conn. App. 307 | Conn. App. Ct. | 1992
The state of Connecticut appeals, with the permission of the trial court, from the court’s judgment granting the defendant’s motion to suppress evi
The defendant claims that the affidavit failed to establish probable cause in the following ways: (1) it contained no factual basis as to the manner in which the three confidential informants acquired their knowledge of the narcotic trafficking and the defendant’s involvement with this activity; (2) it did not establish the veracity of the confidential informants; and (3) it failed to meet the standard for probable cause as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). We agree with the state and reverse the judgment of the trial court.
The record discloses the following pertinent facts. On June 19,1990, Detectives James Fisher and Daniel Trompetta of the Danbury police department obtained three search warrants authorizing searches of the defendant’s residence at 50 Westville Avenue, Dan-bury, as well as his business, Nova Importing, and his person. The same affidavit was used to support each of the three warrant applications. The affidavit consisted of six substantive paragraphs that outlined information related to the Danbury police by three confidential informants over a period of three months.
The second paragraph stated that in the first week of April, 1990, the detectives met with a confidential informant, A, whom they had known “a short period of time” but who had previously provided information proven to be true and accurate upon independent investigation. A informed them that a Dominican male named Teofilo Rodriguez and his wife, Lauretta, were selling cocaine in Danbury from two locations: a store called Nova Importing, at 130 West Street, which the informant stated was owned and operated by the defendant and his wife; and the defendant’s residence at 50 Westville Avenue in Danbury. A also stated that a person named Gilberto Genao worked for the defendant, that some sales were made at Nova Importing, and that the drug deliveries from New York were made to the residence. A also indicated that the drugs were stored at the residence. The affidavit did not indicate the basis of A’s knowledge of the defendant’s narcotics activity.
The third paragraph of the affidavit indicated that during the third week of April, 1990, a similar tip was received from a second confidential informant, B, whom the detectives had known for over two years and who had previously provided information proven to be accurate and which had led to two seizures of narcotics and three felony arrests. B stated that the defendant was selling large quantities of cocaine in the Danbury
The fourth paragraph of the affidavit indicated that during the third week of May, 1990, the detectives met with a third confidential informant, C, who had been known to them for over ten months and who had provided information that had led to three seizures of narcotics and one felony arrest. C stated that Genao was working with the defendant selling cocaine. He further stated that he had personal knowledge of cocaine sales from Nova Importing, had personally observed cocaine in the store and had overheard numerous conversations concerning drug dealings at the store, although no basis of knowledge was indicated in the affidavit.
Paragraph five indicated that during the third week of May, 1990, C made a controlled buy of a package of cocaine at Nova Importing under the supervision of members of the Danbury police department. The affidavit indicated that prior to entering the store the police thoroughly searched C for money and drugs and found none. C was then given a predetermined sum of money and was observed entering the store and being directed to an office near the rear of the store. He remained in the store for between two and three minutes and was then observed leaving the store and traveling to a prearranged location to meet with Trom-petta. C gave the detective a packet containing a white
Paragraph six indicates that early in the third week of June, 1990, C informed the detectives that he had personally observed cocaine that was to be sold in the defendant’s residence and that it was under the defendant’s control. No time or date was indicated.
On June 19, 1990, search warrants were issued authorizing the police to conduct searches of the defendant’s house, his business and his person. Evidence of narcotics trafficking, including plastic and paper packets containing white powder, drug sale records and drug paraphernalia, was seized from the defendant’s house and the defendant was placed under arrest. The defendant moved to suppress the evidence and, after a hearing, the trial court found that the affidavit supporting the warrants failed to establish probable cause as defined by state and federal law. Specifically, the trial court found that probable cause was lacking because the affidavit did not include the informants’ basis of knowledge; C did not provide dates of the sales or conversations he overheard; the detectives did not keep C under constant surveillance during the controlled buy; and B did not state when he observed cocaine at the defendant’s residence. Additionally, the trial court found that the affidavit did not sufficiently incriminate the defendant, as opposed to Genao, and the detectives did not corroborate that Nova Importing and 50 Westville Avenue were the defendant’s business and his home address respectively. We disagree with the trial court and conclude that under the totality of the circumstances test enunciated in Illinois v. Gates, 462 U.S. 213,103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); and subsequently adopted by our state in State
The fourth amendment “protects people from unreasonable government intrusions into their legitimate expectation of privacy.”
A warrant may be issued to search any property “at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” Zurcher v. Stamford Daily, 436 U.S. 547, 554, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978). Two conditions necessary for a search warrant to issue are (1) that there is
The conclusion concerns the connection between the items sought and the crime committed and the present location of the items sought. State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984). The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. State v. Couture, 194 Conn. 530, 537, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Vallas, 16 Conn. App. 245, 261-62, 547 A.2d 903 (1988), aff'd, 212 Conn. 485, 563 A.2d 660 (1989). The quantum of certainty required is a “fair probability” that the search
Under Illinois v. Gates, supra, probable cause for a search warrant is established if the “totality of the circumstances” indicate a probability of criminal activity. Id., 230-32. Probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. Id. Rather than resembling a “piece of precast concrete” probable cause “is a‘mosaic’. . . which is established by fitting pieces of information together . . . .” (Citation omitted.) State v. Ralston, supra.
Federal and state courts have long required that when an affidavit reports information received from a confidential informant the magistrate must make an independent evaluation of the informant’s credibility. State v. Barton, supra, 542. As an aid to the magistrate in making this determination, the United States Supreme Court has travelled a meandering road, first stopping at the two-pronged Aguilar-Spinelli test
Our state Supreme Court has taken a similarly circuitous route. After first accepting the Illinois v. Gates “totality of the circumstances” test; see State v. Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985); State v. Gasparro, 194 Conn. 96, 106, 480 A.2d 509 (1984); it later ruled that article first, § 7, of our state constitution required adherence to the Aguilar-Spinelli test. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). In 1991, the court repudiated Kimbro and embraced the Gates “totality of the circumstances” approach to the probable cause determination: “When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented.” State v. Barton, supra, 544.
Although Gates abandoned the two-pronged test in favor of a totality of the circumstances test, the Gates majority “did not reject out of hand the underlying concerns that had originally been expressed in Aguilar.”
Here, the trial court excluded the April tips set out in paragraphs two and three of the affidavit on the ground that the affiants’ failed to state the bases of the informants’ knowledge. Applying the totality of the circumstances analysis, we conclude that the magistrate was entitled to credit those tips despite the failure of the affidavit to reveal the basis of the knowledge contained therein. The information received from the two different sources dovetailed and thus each source corroborated the information provided by the other and enhanced the reliability of the stated facts. State v. Brown, 14 Conn. App. 605, 616, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). Both of the informants were known to the two detectives and, therefore, the magistrate could infer that each had an interest in avoiding adverse consequences resulting from providing the police with false information. State v. Barton, supra, 550-51. Although the basis for their knowledge of the information related in their tips was not disclosed, the information was corroborated by C’s controlled buy. Additionally, common sense leads us, inferentially, to the conclusion that the tip was trust
The trial court rejected the first May tip because C failed to provide exact dates of the “numerous” drug sales from Nova Importing that he claimed to have observed. The tip was based on C’s direct observation and thus the magistrate could reasonably credit the information. State v. Morrill, supra, 566. Reading the affidavit, the magistrate could reasonably have inferred that the activity C described took place on various dates in the weeks preceding the tip because C’s use of both the present and past progressive verb tenses in describing the activity indicated continuing action. Moreover, this court has noted that the business of dealing in illegal drugs often “involves a course of conduct which continues over a long period of time”; State v. Ralston, supra; and “is usually considered to be a regenerating activity.” State v. Brawn, supra, 615. Although it is reasonable to infer that probable cause dwindles as time passes, the likelihood that evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock. State v. Johnson, supra, 566. Because the affidavit as a whole clearly depicts narcotic trafficking carried on continuously over a period of months, and narcotics trafficking typically occurs for extended periods of time, the temporal factors are not as critical to the determination of probable cause and do not require the magistrate wholly to exclude this tip from his consideration. Id.
The trial court discounted the controlled buy because of the failure of the officers to keep the informant in
The trial court also found fault with the fact that paragraph six of the affidavit did not state when B observed cocaine at the defendant’s residence and that the detectives did not corroborate that Nova Importing and 50 Westville Avenue were the defendant’s business and his home address. Because, as stated earlier,
The trial court also found that the affidavit did not sufficiently incriminate the defendant, as opposed to Genao. All three confidential informants indicated that Genao was working for the defendant, that he made customer contacts for the defendant, that he was involved in drug sales in Danbury and that he picked up the cocaine in New York and brought it to Connecticut for the defendant. Here, too, the information received from each of the three sources was confirmed by the other two informants and thus each source corroborated the information provided by the others and enhanced the reliability of the stated facts. State v. Brown, supra, 616.
Viewed together, the four tips and the controlled buy established a “fair probability” that evidence of narcotics trafficking would be found at the defendant’s residence, at his business and on his person. The information as to the tips set out in paragraphs two, three, four and five of the affidavit provides background and context for the salient and significant June tip set out in paragraph six. The initial three tips describe in highly consistent terms the modus operandi of the enterprise: deliveries of cocaine were received at the defendant’s home, sales and meets were conducted at his place of business, the defendant and his wife were both involved
The judgment is reversed and the case is remanded with direction to deny the defendant’s motions to suppress and dismiss and to reinstate the charges against him.
In this opinion the other judges concurred.
Our decision in this case is controlled by our Supreme Court’s recent rulings in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), and State v. Johnson, 219 Conn. 557, 594 A.2d 933 (1991). See State v. Payne, 25 Conn. App. 428, 431, 594 A.2d 1035, cert. denied, 220 Conn. 915, 597 A.2d 337 (1991). “In those cases, the court overruled its previous holding in [State v.] Kimhro [197 Conn. 219, 492 A.2d 498 (1985)] and found that ‘the “totality of the circumstances” analysis adopted in [Elinois v.] Gates, [462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)] will continue to guarantee the people of Connecticut “the full panoply of rights” that they have come to expect as their due.’ State v. Barton, supra, 546.” State v. Payne, supra.
The fourth amendment to the United States constitution, made applicable to the states through Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 2d 1782 (1949), provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In contrast, “[t]he validity of an arrest warrant depends upon whether the application for the warrant and the accompanying affidavit establish probable cause to believe that: (1) a crime has been committed; and (2) the person to be arrested committed that crime. General Statutes § 54-2a (a) (1); Practice Book § 593; State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983); State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980); 1 LaFave, Search and Seizure (1978) § 3.7. The affidavit must recite sufficient facts so that the judicial officer who issues the warrant can, relying solely on the information thus brought to his or her attention, make an independent determination that probable cause exists as to each element of every crime charged.” State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984).
Under this test, “[t]he issuing judge must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.” (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223,228-29, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).
The trial court applied the Aguilar-Spinelli test as “law that is effective today,” although it concluded that even under the Gates “totality of the circumstances” test the motion to suppress should be granted.