State v. Rose
State v. Rose
Opinion of the Court
In 1968, the defendant was convicted, on a trial to the jury, of having heroin under his control in violation of Public Act No. 555, adopted in the 1967 session of the General Assembly. See General Statutes § 19-481. He was also found guilty of being an habitual offender under the provisions of what was then § 54-121 of the General Statutes. He appealed from the judgment assigning error in (1) the denial of his motion to suppress evidence; (2) certain rulings on the admissibility of evidence; (3) the denial of his motion for a mistrial; (4) the denial of his motion to dismiss the habitual offender part of the information; and (5) the sentence imposed.
At the hearing on his pretrial motion to suppress and on this appeal, the defendant has claimed that the affidavit in support of the application for a warrant to search an apartment at 584 Berkshire Avenue in Bridgeport, prepared by the police and submitted to a judge of the Circuit Court (Eielson, J.) on December 28, 1967, did not support a finding of probable cause to believe that evidence of criminal activity existed within the apartment alleged by the affiants to be premises where such
Specifically, the defendant contends that the affidavit supporting the application for the search warrant does not contain any facts which connect the asserted illegal activity with the apartment sought to be searched. The application for the warrant was predicated upon information supplied to the police by two informants whom they represented to be reliable. In the first two paragraphs of the affidavit and application for the warrant the apartment to be searched and in which it was complained that narcotic drugs and paraphernalia were located was specifically described as “[a] 3 story dwelling, with grey imitation brick siding, the 1st floor apartment on the right side front numbered 584 Berkshire Ave., Bridgeport, Conn.” After reciting that one of the reliable informants had stated that Bose bought heroin out of town, mixed it with sugar, packaged it in small white packets, scotch taped it, and sold it to addicts, the affidavit then described the paraphernalia used by Bose and stated: “These items are kept in a closet just right of the entrance door to the apartment.” This reference to “the apartment” is the first reference to any apartment after the specific earlier description of the apartment at 584 Berkshire Avenue, Bridgeport, for which the search warrant was sought. Clearly the premises to be searched and the illegal activity
As Justice Goldberg said in United States v. Ventresca, 380 U.S. 102, 108-09, 85 S. Ct. 741, 13 L. Ed. 2d 684, referring to the historical development of constitutional standards in the area of search and seizure: “These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
“This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. See Aguilar v. Texas, . . . [378 U.S. 108, 109, 84 S. Ct. 1509, 12 L. Ed. 2d 723]. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circum
This court has also had occasion to observe: “The principles by which we test the adequacy of an affidavit have been designed to insure that a disinterested judicial officer make his own comm on sense judgment that there is probable cause for the issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas, 378 U.S. 108, 110-11, 84 S. Ct. 1509, 12 L. Ed. 2d 723; State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517.” State v. Grayton, 163 Conn. 104, 106, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495; see also State v. Saidel, 159 Conn. 96, 98, 267 A.2d 449.
Keeping in mind the fact that the reviewing court may consider only information brought to the issuing judge’s attention; Aguilar v. Texas, 378 U.S. 108, 109, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Giordenello v. United States, 357 U.S. 480, 486, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; we conclude that the judge issuing the warrant, taking this commonsense approach, could reasonably and logically find that there was probable cause to search the apartment specified in the warrant and to issue the warrant. In view of the contrary conclusion reached in the dissenting opinion, we have printed in full the affi
The defendant next contends that the judge who issued the search warrant could not have reasonably found probable cause to issue it because the
The defendant next attacks the affidavit asserting that it lacked sufficient corroboration of the informants’ statements. In support of his position, he cites Aguilar v. Texas, supra, 114, which stated that “[a]lthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, [80 S. Ct. 725, 4 L. Ed. 2d 697] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . .- was ‘credible’ or his information ‘reliable.’ ”
The defendant next claims error in the conclusion of the trial court that the search and seizure warrant was legal, asserting that there is no indication in the transcript or record that the court in fact examined the warrant. The absence of such an indication is, however, not conclusive on the question of whether the court did in fact examine the warrant itself, and none of the defendant’s attacks on the search has been directed at the contents of the warrant itself. Bather, they all go to contest the sufficiency of the information contained in the affidavit and application for the warrant, and we have found all of these attacks to be without merit. Furthermore, the defendant has not attacked the finding of the court that the warrant was issued “to
The defendant next claims that he did not receive a fair trial and that there was error in denying his motion for a mistrial. The motion for a mistrial was made after the court through its own questions elicited from a witness, Sergeant John Seniber of the Bridgeport police department, that in his opinion the approximate value of the heroin in one of the packages seized in the defendant’s apartment was $11,000. The basis for the motion was a claim that this testimony was irrelevant to the crime charged, speculative on the part of the witness in that it had no basis in the facts then in evidence, and was inflammatory and prejudicial to the defendant. In addition, the defendant asserts that the witness’ valuation of the heroin was based on the-assumption that it was pure heroin, a fact not in evidence. Subsequent to this testimony, the state toxicologist testified that the substance seized from the defendant’s apartment was not pure heroin but was at least eighty percent milk sugar. He estimated the value of the heroin seized at several hundred dollars. Thereafter, the court struck the testimony of Sergeant Sember concerning his valuation of the heroin and in no uncertain terms instructed the jury to disregard it totally.
The defendant next assigns error to several evidentiary rulings made by the court during the course of the trial. He first claims error in the admission of physical and testimonial evidence based on the claim that this evidence was the product of an illegal search and seizure. Having determined that the search and seizure was lawful and constitutional, it follows that evidence which resulted from that search was clearly admissible.
The defendant also assigns error to the rulings of the trial court sustaining the state’s objection to certain questions propounded during cross-examination of witnesses by the defendant’s counsel. These questions'attempted to elicit from police officers, who had taken part in the search of the defendant’s apartment, testimony concerning the defendant’s wife’s involvement with the narcotics which were found there. The state objected on the grounds of irrelevance and its objections were sustained.
The trial court has broad discretion in determining the relevancy of evidence. Johnson v. Newell, 160 Conn. 269, 276, 277, 278 A.2d 776; State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455; State v. Smith, 157 Conn. 351, 355, 254 A.2d 447; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, cert. denied, sub nom. State v. Joseph, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557. “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. State v. Towles, 155 Conn. 516, 523, 235 A.2d 639; Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444.” Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715. The trial court has wide discretion as to the scope of cross-examination as well. State v. Brathwaite, 164 Conn. 617, 619, 325 A.2d 284. In view of the fact that only the defendant was on trial
The defendant also assigned as error the court’s denial of his motion to dismiss the habitual offender portion of the information which alleged that he had twice before been convicted, sentenced and imprisoned in the state prison. The charge was made pursuant to the provisions of § 54-121 of the 1958 Eevision of the General Statutes which prescribed indeterminate sentences to the state prison “provided, when any person so sentenced has twice before been convicted, sentenced and imprisoned in a state prison or penitentiary, the court shall sentence such person to a maximum of thirty years.” It is the defendant’s claim that the statute was unconstitutional because it violated the equal protection clause of the United States constitution and the imposition of the prescribed sentence amounted to cruel and unusual punishment. In State v. Mead, 130 Conn. 106, 109, 32 A.2d 273, and State v. Grady, 153 Conn. 26, 35, 211 A.2d 674, we decided against the validity of just such contentions and there is no need to repeat what we said there. Neither the record in this case nor the passage of time since our decisions in those cases persuades us to a result different from that reached in those cases.
The defendant’s final assignment of error is addressed to the sentence imposed by the trial court.
The sentence as imposed was within the limits fixed by statute for the offense charged. We have no discretionary power in such a case except where a trial court appears to have abused its discretion. State v. LaPorta, 140 Conn. 610, 612, 102 A.2d 885; State v. Van Allen, 140 Conn. 39, 44, 97 A.2d 890; State v. Horton, 132 Conn. 276, 278, 43 A.2d 744. That does not appear to be the case here. Two other factors are also of sigmfieance. First, it does not appear that the present claim was ever made to the trial court at the time of sentence. See Practice Book § 652; State v. Malley, 167 Conn. 379, 386, 355 A.2d 292, and cases cited therein. Second, although the defendant on appeal assigned as error the comments of the court and the imposition of the sentence to which objection is now pressed, the court refused to make any corrections. Inherent in the present
There is no error.
In this opinion Loiselle and Longo, Js., concurred. Bogdanski, J., concurred in the result.
“Affidavit and Application
Search and Seizure Warrant
CCT-7A Eev. 3-66
STATE OF CONNECTICUT
CIBCUIT COUBT
TO: A Judge of the Circuit Court
The undersigned, being duly sworn, complains on oath that the undersigned has probable cause to believe that certain property, to wit: Nareotic Drugs, Dangerous Drugs, and Narcotic Paraphernalia is possessed, controlled, designed or intended for use as a means of committing the crime of Possession and control of narcotic drugs in violations of Public Act #555
And is within or upon a certain person, place, or thing, to wit . . . A 3 story dwelling, with grey imitation brick siding, the 1st floor apartment on the right side front numbered 584 Berkshire Ave., Bridgeport, Conn, and Joseph Bose a white male age 46, 5'6", 155 lbs. And that the facts establishing the grounds for issuing a Search and Seizure Warrant are the following
1. Det. William Brackett a regular member of the Bridgeport Police Dept, for the past 16^ years, presently assigned to the Special Service Division for the past 13 months.
2. Det. Frank Kapostas a regular member of the Bridgeport Police Dept, for the past 16^ years, presently assigned to the Special Service Division for the past 2 years.
3. Dets. Brackett & Kapostas have participated in numerous narcotic arrests and investigations.
4. On December 19, 1967, Dets. Brackett & Kapostas received reliable information from a confidential informant. This informant has given information in the past that has led to the arrest of 7 people, 3 of these received convictions and the other 4 are still pending court trial.
5. The reliable informant came to the offices of Special Services and informed Dets. Brackett & Kapostas that Joseph Bose was a supplier of Heroin in large quantities and he in fact supplies heroin to the small heroin pushers around the city of Bridgeport.
6. A check with Central Becords Division in the Bridgeport
7. December 28, 1967 a reliable and confidential informant came to the offices of Special Services to give information on the actions of Joseph Bose. This informant has given information in the past that has led to the arrests of 4 people, 1 of which is serving a long sentence in Conn. States Prison.
8. This informant stated to Dets. Brackett & Kapostas that Joseph Bose has pushers working for him that are selling large amounts of Heroin.
9. The informant also stated that Bose buys Heroin at 86% pure out of town then mixes this with Milk Sugar. With this mixture of Heroin and Milk Sugar it is then packaged in small white packets, scotch taped, and sold to the addict for the sum of $6.00.
10. The informant further stated that he was present during the time when Bose was making this mixture and small $6.00 packets. Used during this processing is a large mirror, nylon stockings (for Sifting), tea spoons, white paper, and rubber bands. These items are kept in a closet just right of the entrance door to the apartment.
11. During the month of December 1967 Dets. Brackett & Kapostas observed Joseph Bose in the company of a known narcotic pusher in the vicinity of Beardsley Ter. Apts.
12. Based on the information received, observations, Training and Experience of the officers, their knowledge that a crime is being committed, it is believed that they have established probable cause that the crime of Public Act #555 of the Connecticut General Statutes is being committed.
13. This application has not been presented to any other judge. The undersigned has not presented this application in any other court or to any other judge.
Wherefore the undersigned prays that a warrant may issue commanding a proper officer to search said person or to enter upon said place or thing, search the same, and take into custody all such property.
Signed at Bridgeport, Connecticut this 28 day of December, 1967
Det. Prank Kapostas
Signed at Bridgeport, Connecticut this 28 day of December, 1967
Det. William Brackett”
The finding of the court was that as a result of the search the following items were seized: “One full can of Lactose U.S.P. powder (milk sugar). One blue tissue paper which was found with the works wrapped in it. One large package of suspected pure heroin. One medium size package of suspected pure heroin. Two small packs or decks of suspected heroin. Two plastic pouches of traces of suspected heroin. One bottle cap cooker with small cotton swatch residue of suspected heroin. One hypodermic syringe, four B & D No. 26 needles, 22 empty glassine envelopes, 11 assorted size white linen paper commonly used for packaging small packs or decks of heroin, and one Holland Linen paper pad.”
Dissenting Opinion
(dissenting). I cannot agree that the affidavit supporting the warrant in this case meets constitutional requirements.
The function of the court reviewing the propriety of the action of the judge or magistrate who issues a warrant to search specific premises for contraband is to determine whether there were facts sufficient to justify his independent determination that the contraband was probably in the premises described by the affiants as the place to be searched. Rugendorf v. United States, 376 U.S. 528, 533, 84 S. Ct. 825, 11 L. Ed. 2d 887; Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697. A search warrant is issued upon a sworn affidavit establishing the grounds for its issuance, and the reviewing court may consider only information brought to the issuing judge’s attention. Aguilar v. Texas, 378 U.S. 108, 109, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Giordenello v. United States, 357 U.S. 480, 486, 78 S. Ct. 1245, 2 L. Ed. 2d 1503. That affidavit must contain a sufficient description of the place that is to be searched, for in determining what is probable cause to issue a search warrant, “[w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched.” Dumbra v. United States, 268 U.S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032. As the United States Supreme Court has said, “the issue in warrant proceedings is . . . probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises.” United States v. Harris, 403 U.S. 573, 584, 91 S. Ct. 2075, 29 L. Ed. 2d 723. I cannot agree that the affidavit in this case in support of the application for the warrant to
A
The affidavit was constitutionally defective for failure to meet the dual standards of sufficiency set forth by the United States Supreme Court in Aguilar v. Texas, supra, typically referred to as “Aguilar’s two-pronged test.” United States v. Chaves, 482 F.2d 1268, 1270 (5th Cir.); see Spinelli v. United States, 393 U.S. 410, 413, 89 S. Ct. 584, 21 L. Ed. 2d 637. Where the information on a particular element, such as the place to be searched, submitted to the judge or magistrate is only derived from an informant’s hearsay and not within the personal knowledge of the affiants, the first part of the Aguilar test requires that the affidavit disclose particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person; the second then requires specific facts or circumstances tending to demonstrate that the informant gathered his information in the instant case in a reliable manner. Aguilar v. Texas, supra, 114; Spinelli v. United States, supra; United States v. Lopez-Ortiz, 492 F.2d 109, 114 (5th Cir.), reh. denied, 494 F.2d 1296; People v. Hendricks, 25 N.Y.2d 129, 133, 250 N.E.2d 323. As applied to the kind of facts presented by this case, the Aguilar
It has been held that a mere recital in the affidavit that the informant has proved to be reliable in the past does not satisfy the requirements of the first part of the Aguilar test; rather, the affidavit must demonstrate that the informant has established a reputation for providing accurate information. United States v. Ramirez, 279 F.2d 712, 715 (2d Cir.), cert. denied, 364 U.S. 850, 81 S. Ct. 95, 5 L. Ed. 2d 74; State v. Dove, 182 N.W.2d 297, 301 (N.D.).
Even if the affiants’ statement could be interpreted as sufficiently demonstrating the reliability of the informant, the second prong of the Aguilar test was also left unsatisfied in this case since the affidavit fails to disclose the underlying circumstances from which the informant had inferred that contraband was being kept in a closet just right of the entrance door to the apartment. Aguilar v. Texas, supra, 113-14; Spinelli v. United States, supra, 416; United States v. Thompson, 495 F.2d 165, 168 (D.C. Cir.); United States v. Lopez-Ortiz, supra, 114; DeAngelo v. Teager, 490 F.2d 1012, 1014 (3d Cir.); State v. Rocheleau, 131 Vt. 563, 569, 313 A.2d 33. The affidavit states that the informant had personally observed the defendant making an illicit mixture of heroin and milk sugar. But nowhere is there any indication as to how the informant learned
B
Of course, an affidavit may still be found to be constitutionally sufficient where it fails to meet the Aguilar tests if the information provided by the informant on the element in question is sufficiently detailed or corroborated to justify a conclusion that it is equally trustworthy as information obtained as a result of strict adherence to Aguilar. United States v. Harris, supra, 584; Spinelli v. United States, supra, 415, 423-24 (opinion of White, J., concurring); McCray v. Illinois, 386 U.S. 300, 313, 87 S. Ct. 1056, 18 L. Ed. 2d 62, reh. denied, 386 U.S. 1042, 87 S. Ct. 1474, 18 L. Ed. 2d 616; United States v. Black, 476 F.2d 267, 269 (5th Cir.); United States v. Marihart, 472 F.2d 809, 812-14 (8th Cir.). Where there is evidence relied upon by the affiants which corroborates the information provided by the informant to the effect that contraband is concealed in certain specified premises, the issuing judge or magistrate may under most circumstances properly conclude that there is probable cause to believe that the contraband is
In this case, while there appears to have been evidence tending to corroborate some of the informant’s information on the defendant’s involvement in criminal activity, the affidavit discloses no corroboration of his information concerning the place to be searched. The sufficiency of the affidavit in this respect, then, rests entirely on the statement that items which the informant claimed he once saw the defendant using to make a mixture of heroin and milk sugar “are kept in a closet just right of the entrance door to the apartment.” Despite the constitutional burden which this meagre representation was forced to sustain, the majority conclude that to meet this burden that statement must be read as incorporating the description of the premises at 584 Berkshire Avenue contained in the preliminary statement of the affiants. This doctrine of “incorporation by reference” is invoked primarily only in cases where the actual search warrant issued by the judge is claimed to suffer from too broad a descrip
Similarly, courts have allowed a judge or magistrate who issues a search warrant to read an affiant’s preliminary statement and subsequent account of supporting facts together in determining whether there is a substantial basis underlying the affiant’s claim that there is probable cause to believe contraband is where the affiant says it is. See, e.g., Jones v. United States, supra, 267-68 n.2, cited with approval, United States v. Harris, supra, 578, 584; Smith v. State, 56 Okla. Crim. 103, 105, 34 P.2d 280. However, just as search warrants are held to incorporate properly the information in affidavits of probable cause only by specific references thereto, statements of supporting facts appearing-in affidavits of probable cause properly incorporate constitutionally required data such as the description of the place to be searched appearing in the affiant’s complaining statement only where specific
Specificity in the words of reference is required so that it is made clear to the judge or magistrate that the informant actually did identify the particular premises sought to be searched as the place where he himself saw the contraband. See United States v. Suarez, 380 F.2d 713, 714-15 (2d Cir.). Such precision is necessary for the judge to make an independent determination of the existence of a substantial basis in fact to support a reasonable belief that contraband is indeed being concealed in the specific premises which the affiants have described as the place to be searched; Dumbra v. United States, supra, 441; Jones v. United States, supra, 271; United States v. Harris, supra, 584; United States ex rel. Hurley v. Delaware, supra, 285; United States v. Jennings, 235 F. Sup. 551-52 (D.C. Cir.), cert. denied, 384 U.S. 943, 86 S. Ct. 1465, 16 L. Ed. 2d 541. The lack of such precision, conversely, increases the risk that the judge will issue a warrant to search constitutionally protected premises named by the police acting not
It cannot be said that the Circuit Court judge in this case was presented with facts establishing that the informant observed contraband being concealed in the specific apartment for which the warrant was issued. United States v. Suarez, supra, 714-15; United States v. Lassoff, 147 F. Sup. 944, 948 (E.D. Ky.). To paraphrase a statement in an opinion from another court which had occasion to rule upon the sufficiency of an application for a search warrant, no matter how closely and how liberally the affidavit in this case is scrutinized, there is no “common sense” way, nor any other way, of importing into the informant’s statement to the affiants a description of the apartment at 584 Berkshire Avenue as the premises where the contraband in question was being kept. United
I would reverse.
Another statement in an affidavit well recognized as tending to establish the reliability of the informant is one that the informant in providing the information in question was also making a declaration against personal interest. United States v. Harris, supra, 583; Agnellino v. New Jersey, 493 F.2d 714, 726 (3d Cir.). The affidavit in this case, however, does not establish that the informant was making such a declaration.
The practice of invalidating searches conducted pursuant to warrants issued on the basis of facts set out in an affiant’s request for the warrant which are only loosely referred to in the affiant’s statement of supporting facts is deeply rooted in the New England legal tradition. See, e.g., Humes v. Taber, 1 R.I. 464, 465-66, 470-71.
Reference
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- State of Connecticut v. Joseph Rose, Jr.
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