State v. Browne

970 A.2d 81

291 Conn. 720

STATE of Connecticut v. Herbert J. BROWNE III.

No. 18065.

Supreme Court of Connecticut.

Argued November 17, 2008.

Decided May 26, 2009.

Russell C. Zentner, senior assistant state's attorney, with whom were Susan W. Hatfield, deputy assistant state's attorney, and, on the brief, Timothy J. Liston, state's attorney, and Timothy J. Sugrue, senior assistant state's attorney, for the appellant (state).

John R. Donovan, Cromwell, for the appellee (defendant).

Conrad Ost Seifert, Old Lyme, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

ROGERS, C.J., and NORCOTT, KATZ, ZARELLA and SCHALLER, Js.

ZARELLA, J.

The sole issue in this certified appeal is whether the Appellate Court correctly concluded that the trial court improperly had denied the motion of the defendant, Herbert J. Browne III, to suppress evidence seized pursuant to a search warrant. The state appeals, following our grant of certification,¹ from the judgment of the Appellate Court, which reversed the trial court's judgment and remanded with direction to grant the defendant's motion to suppress evidence obtained during a search of his residence. State v. Browne, 104 Conn.App. 314, 321, 933 A.2d 735 (2007). The state makes several arguments on appeal. First, the state argues that the search warrant was valid, notwithstanding any scrivener's errors present on the face of the document. Alternatively, the state argues that any errors in the particularity portion of the warrant can be remedied by employment of the severance doctrine, through which, the state asserts, an otherwise facially deficient warrant may be saved by excising the offending language. The state contends that, once the problems with the warrant are cured by severance, the evidence was legally seized under the plain view doctrine.

The defendant urges us to affirm the judgment of the Appellate Court, asserting that the challenged warrant "authorizes not only a general search but an illegal, general and widespread search unsupported by either probable cause or constitutional authority." The defendant further argues that the warrant cannot be saved by the affidavit's explicit reference to marijuana because the affidavit did not accompany the warrant nor was it incorporated by reference into the warrant. We agree with the state and, therefore, reverse the judgment of the Appellate Court.

The undisputed facts of this case were fully set forth in the Appellate Court's opinion.² "On December 23, 2003, a combined application and affidavit for the search and seizure warrant was presented to the Honorable Thomas V. O'Keefe, Jr., a judge of the Superior Court. It is undisputed that the warrant authorized a search for and seizure of illicit drugs. It is also undisputed that the warrant mistakenly referenced the illicit drug cocaine instead of the illicit drug marijuana.

"Specifically, after listing both the narcotic cocaine and various items associated with the sale thereof, the warrant application stated that the aforementioned `is possessed, controlled, designed or intended for use or which is or has been or may be used as the means of committing the criminal offense of ... possession of marijuana [in violation of General Statutes § 21a-279(c) and] possession of marijuana [with intent to sell in violation of General Statutes § 21a-277(b)],' and `[c]onstitutes evidence of the following offense or that a particular person participated in the commission of the offense of ... possession of marijuana [in violation of § 21a-279(c) and] possession of marijuana [with intent to sell in violation of § 21a-277(b)]. ...' The accompanying affidavit described, in great detail, two controlled purchases of marijuana from the defendant. ... The [affiants] concluded that `it [was their] belief ... based on their training and experience and knowledge of the crimes of [p]ossession of [m]arijuana ... and [p]ossession of [m]arijuana [w]ith [i]ntent to [s]ell ... that probable cause exist[ed] that [m]arijuana [would] be found at 153 Trolley Crossing ... [in Middletown].' ...

"The search and seizure warrant contained the following language: `The foregoing [a]ffidavit and [a]pplication for [s]earch and [s]eizure [w]arrant having been presented to and considered by the undersigned, a [j]udge of the Superior Court, the undersigned (a) is satisfied therefrom that grounds exist for said application, and (b) finds that said affidavit established grounds and probable cause for the undersigned to issue this [s]earch and [s]eizure [w]arrant, such probable cause being the following: From said affidavit, the undersigned finds that there is probable cause for the undersigned to believe that the property described in the foregoing affidavit and application is within or upon the person, if any, named or described in the foregoing affidavit and application, or the place or thing, if any, named or described in the foregoing affidavit and application, under the conditions and circumstances set forth in the foregoing affidavit and application, and that, a [s]earch and [s]eizure warrant should issue for said property. Now therefore, by authority of the [s]tate of Connecticut, I hereby command any [p]olice [o]fficer of a regularly organized police department, any [s]tate [p]oliceman; or any [c]onservation [o]fficer, [s]pecial [c]onservation [o]fficer or [p]atrolman acting pursuant to [General Statutes] § 26-6 to whom these presents shall come within ten days after the date of this warrant to ...

"`[E]nter into or upon and search the place or thing described in the foregoing affidavit and application, to wit: 153 Trolley Crossing located off of Westlake Road [in] Middletown.... [One hundred fifty-three] Trolley Crossing is a multiapartment condo[minium] complex, with the number 153 affixed to the door. Vehicle registered to [the defendant] Connecticut [registration] 567JYF Ford Taurus VIN ... 1FALP52U1VG142772. ...

"`Search the person described in the foregoing affidavit to wit: The person of [the defendant, date of birth, December 12, 1962] for the property described in the foregoing affidavit and application to wit: Cocaine, crack cocaine, cutting agents such as lactose and baking soda, white powder, razor blades, scrapers, straws, packaging materials, foil packets, plastic bags, glassine envelopes, glass or plastic vials, scales, records and other "data" ... as defined by [General Statutes § 53a-250 (8)] of sale and or purchases of narcotics, currency, rifles, shotguns, semi-automatic weapons, fully automatic weapons, revolvers, ammunition, and other dangerous weapons. Telephone toll records, rent/mortgage records, bank statements, records and account passbooks, receipts showing cash purchases ... such as electronic equipment including [video cassette recorders], television sets, video cameras, cameras, computers, computer peripherals and storage [devices], gold and silver jewelry which are believed to have been purchased with money derived from the sale of narcotics, financial records and "[d]ata", beepers, fax machines and telephone answering machines and stored messages contained either on tape or any other electronic format, safety deposit box keys and records relating to same, police scanners, videotapes, and developed photographs showing narcotics and/or other criminal activity.' Judge O'Keefe signed the warrant on December 23, 2003.

"Later that day, the affiants to the warrant application, Detectives Jorge Yepes and Christopher Lavoie of the Middletown police department, accompanied by Sergeant Michael Marino, executed the warrant. They stopped the defendant's vehicle approximately one mile from the defendant's apartment and informed the defendant that they had a search and seizure warrant `for [him] and the vehicle and his apartment for drugs.' The defendant responded that he `didn't have anything on him or in his car' and then volunteered that `there [were] drugs back at [the] apartment.' When [the officers and the defendant] arrived at the apartment, the defendant `showed [the officers] which key was the key to get into [the] apartment and immediately upon entering the apartment [the defendant] stated that the drugs were in the freezer.' Inside the freezer were two bricks of marijuana, which together weighed seven and one-half pounds. The officers seized the marijuana, along with two scales, multiple plastic bags, proof of residence and $475 in cash.

"Following his arrest, the defendant filed a motion to suppress, alleging, inter alia, that `[t]he property seized [was] not that described in the warrant....' At the suppression hearing, Yepes was asked why the illicit drug marijuana was not `listed as part and parcel as to the items to be seized.' Yepes testified that `[w]hen I typed up the warrant I made a mistake. I did a cut and copy section of the warrant. ... I cut and paste from another warrant [with] this section on it and, when I put it in, I forgot to pu[sh] the delete button for the cocaine and crack cocaine instead of putting the marijuana on it.' On cross-examination, Yepes stated that he reviewed the warrant after its drafting and admitted that `I just missed it. I made a mistake.' The trial court subsequently denied the motion to suppress." State v. Browne, supra, 104 Conn.App. at 323-30, 933 A.2d 735 (Gruendel, J., dissenting). The defendant entered a plea of nolo contendere, conditioned on his right to challenge on appeal the validity of the search warrant. See General Statutes § 54-94a. The court rendered judgment of conviction, sentencing the defendant to forty-two months imprisonment. Additional facts will be set forth as necessary.

The Appellate Court, relying primarily on Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), concluded that the warrant was facially invalid because it failed to satisfy the particularity clause of the fourth amendment to the United States constitution.³ State v. Browne, supra, ...