State v. Barton

Page 561

576 A.2d 561

22 Conn.App. 62

STATE of Connecticut v. Timothy BARTON.

Nos. 7869, 7870.

Appellate Court of Connecticut.

Argued Jan. 4, 1990.

Decided June 19, 1990.

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Frank S. Maco, State's Atty., John Dropick, Asst. State's Atty., and Michael E. O'Hare, Sp. Atty., for appellant (State).

Walter H. Scanlon, Plainville, for appellee (defendant).

Before SPALLONE, DALY and NORCOTT, JJ.

DALY, Judge.

The defendant was charged in a substituted information with possession of over one kilogram of marihuana with intent to sell in violation of General Statutes § 21a-278(b) and possession of four ounces or more of marihuana in violation of General Statutes § 21a-279(b). ¹ The defendant filed a motion to suppress the marihuana that was seized from the first floor apartment of 232 Perch Rock Trail, Winsted. He claimed that the affidavit in support of the application for the search warrant did not establish probable cause to believe that marihuana, in fact, was within these premises. The trial court, Moraghan, J., granted the motion to suppress, and denied the state's motion to reargue the motion to suppress and motion for articulation. The charges were then dismissed with prejudice. With the permission of the trial court, the state appealed from the judgment of dismissal.

The state challenges (1) the trial court's conclusion that the warrant affidavit failed to establish probable cause, and (2) the court's failure to apply the good faith exception to the exclusionary rule to the evidence seized from the apartment at issue. We affirm the judgment of the trial court.

The relevant facts are as follows. On August 7, 1988, the Winsted police department obtained a search and seizure warrant authorizing them to search the premises described as the first floor apartment at 232 Perch Rock Trail, Winsted, and the person of the defendant. The police executed the warrant later that day. When they arrived at the premises, the defendant was not at the apartment, but they were able to obtain a key from the owner who lived on the second floor. Upon entry, they found fifty-two pounds of marihuana in a bedroom. It was wrapped in small clear plastic bags and kept in large garbage bags. The defendant returned to the apartment shortly after midnight and the police apprehended him. ²

The defendant filed a motion to suppress the material seized pursuant to the search warrant, claiming that the search and seizure violated his rights under article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution. The trial court granted the motion to suppress finding (1) that the affidavit in support of the search warrant did not adequately set forth the unnamed informant's basis of knowledge and, as a result, the warrant lacked probable cause, and (2) that the state failed to establish an adequate record for upholding the search under the good faith exception to the exclusionary rule of the fourth amendment.

I

On appeal, the state first challenges the trial court's finding that the affidavit lacked probable cause. Specifically, the state argues that the court should not have concluded that the affidavit failed to state adequately the informant's basis of knowledge in that (1) the informant provided detailed information that permitted an inference that the information he described was obtained by personal observation, (2) the informant provided information in close proximity to the alleged criminal activities, and (3), because this is arguably a close case, great deference should be given to the issuing magistrate's determination that probable cause existed on the face of the warrant. We do not agree.

As noted by the trial court, this affidavit consisted of five paragraphs, four of which had minimal significance. The first two paragraphs addressed the experience and training of the affiants, the fourth paragraph indicated who owned the property that was the subject of the search and described that property, and the fifth was a conclusionary paragraph. ³ Thus, as the trial court properly found, the only basis upon which probable cause could have been established is paragraph three. That paragraph states: "That the affiants state on Sunday, August 7, 1988 Sgt. Gerald O. Peters received information from a confidential informant at police headquarters pertaining to Tim Barton who resides at 232 Perch Rock Trail, Winsted, Connecticut, first floor that Barton has in his apartment a large quantity of marijuana in plastic garbage bags, which are kept in a closet. That the informant also provided Sergeant Peters of [sic] a sample of the marijuana that is in the bags. A field test of the marijuana substance that was provided to Sgt. Peters was field tested and the test results was [sic] positive for cannibas substance. The informant further stated that Tim Barton operates a Texas registered vehicle and after being away for approximately one week Barton returned home on Saturday, August 6, 1988 and unloaded several large plastic bags in the evening hours. The informant further stated that shortly after that four to five people arrived at the Barton apartment and stayed a short while and then left with plastic garbage bags."

"The fourth amendment to the United States constitution provides that 'no warrants shall issue, but upon probable cause, supported by oath or affirmation.' See also Conn.Const., art. I, § 7 ('no warrant to search any place, or to seize any person or things, shall issue without ... probable cause supported by oath or affirmation')." State v. DeChamplain, 179 Conn. 522, 526, 427 A.2d 1338 (1980).

"In reviewing an affidavit for a search and seizure warrant we must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of a warrant.... The judge is entitled to rely on his own common sense and the dictates of common experience, although the standard for determining probable cause is an objective one.... Purely conclusory affidavits by the affiant or informant that he or she believes that probable cause exists, however, cannot be relied upon; the underlying circumstances upon which that belief is based must be detailed in the affidavit.... The issuing judge must not merely serve as a rubber stamp for the police." (Citations omitted.) Id., at 527-28, 427 A.2d 1338.

"Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched." (Emphasis in original.) State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987). "In considering the sufficiency of the affidavit, we confine ourselves 'to the facts which appear on the face of the affidavit or which properly may be inferred therefrom.' " State v. DeChamplain, supra, 179 Conn. at 531, 427 A.2d 1338.

In State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), our Supreme Court determined that article first, § 7, of the state constitution affords more substantive protections against unreasonable searches and seizures than the fourth amendment to the federal constitution. In that case, the court reviewed the magistrate's finding of probable cause under the two pronged Aguilar- Spinelli ⁴ test. The same test has been applied to judicial review of search warrants. See State v. Morrill, supra, 205 Conn. at 565, 534 A.2d 1165.

"The Aguilar- Spinelli test ... consists of two prongs: ' " 'The 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.' " ' " Id., at 566, 534 A.2d 1165, see also State v. Ruscoe, 212 Conn. 223, 228-29, 563 A.2d 267 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

"The first prong of the test, often referred to as the 'basis of knowledge' prong, examines the information provided by the informant to determine if it 'relate[s] sufficient facts from which a judge reasonably could conclude that the [informant] based [his] allegations of criminal activity on sufficient underlying circumstances.' " State v. Morrill, supra. On the basis of our examination of the affidavit, we agree with the trial court that the "basis of knowledge" requirement was not satisfied.

In State v. DeChamplain, supra, 179 Conn. at 532, 427 A.2d 1338, our Supreme Court upheld the trial court's decision to suppress marihuana seized from the defendant's apartment on the basis that the warrant failed to set forth sufficient underlying circumstances to support the conclusion that there was probable cause to believe that marihuana was located in the apartment in question. Similarly, we hold that the affidavit in the present case failed to set forth the informant's basis of knowledge that marihuana was located in the defendant's apartment, particularly at the time the warrant was executed.

The affidavit contained no statement to the effect that the informant was ever in the defendant's apartment. See id. Nor did it set forth facts observed or perceived by the informant from which the presence of marihuana in the defendant's apartment reasonably could have been inferred. Id.

One isolated incident in which the informant stated that he observed the defendant remove plastic garbage bags from a car with Texas registration and carry them inside a building where his apartment was located, followed by the informant's observation that several people subsequently...