State v. Glenn

251 Conn. 567

740 A.2d 856

STATE OF CONNECTICUT v. CLARENCE GLENN

(SC 15928)

Supreme Court of Connecticut.

Argued September 22, 1999.

Officially released December 7, 1999.

McDonald, C. J., and Borden, Norcott, Palmer and Callahan, JS. Theresa M. Dalton, assistant public defender, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva Lenczewski, senior assistant state's attorney, for the appellee (state).

Opinion

CALLAHAN, J.

The sole issue in this appeal is whether article first, § 7, of the Connecticut constitution permits a criminal defendant to bring a subfacial challenge to a warrant based solely on the alleged lack of veracity of an informant's statements in an affidavit supporting an application for a search and seizure warrant. We conclude that it does not. The defendant, Clarence Glenn, was charged, by substitute information, with the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (a).¹ Following the denial of his motion to suppress certain evidence that had been seized from his residence pursuant to a warrant, the defendant entered a conditional plea of nolo contendere. The trial court rendered a judgment of guilty thereon, and the defendant appealed to the Appellate Court, which affirmed his conviction. State v. Glenn, 47 Conn. App. 706, 707 A.2d 736 (1998).

The facts as stated in the Appellate Court's opinion are as follows. "In response to a warrant application filed by Waterbury police, a search warrant was issued for the defendant's residence, a second floor apartment at 44 Burton Street in Waterbury. In the affidavit supporting the warrant application, the affiants, two Waterbury police officers, alleged that they had probable cause to believe that there were narcotics at that location. A search warrant was issued by a judge of the Superior Court and executed by Waterbury police officers. During the search, the officers seized narcotics, money and drug paraphernalia. The officers arrested the defendant, who subsequently filed a motion to suppress the seized evidence, which motion included a request for a Franks [v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)] hearing. When the trial court denied that motion, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a and Practice Book § 4003 [now § 61-6], to an information charging him with possession of narcotics with intent to sell in violation of ... § 21a-278 (a)." State v. Glenn, supra, 47 Conn. App. 707.

In support of his motion to suppress in the trial court, the defendant maintained that he had an alibi for the day on which he allegedly had sold narcotics to an informant during a controlled buy. The informant, known to be reliable, reported his purchase of narcotics from the defendant to the affiants, who included that information in their affidavit supporting the search warrant application. The defendant's motion, for purposes of this appeal, questions only the veracity of the informant. The defendant's motion to suppress was accompanied by two affidavits. In one, Joseph Gallop claimed that on the date in question he and the defendant were in Virginia. In the other, Gaynell Hunt, the defendant's sister, claimed that she, in Ohio, received two out-of-state collect calls from the defendant, one from Virginia on the date in question. With his motion the defendant also included two letters from Western Union indicating a money transfer from Hunt to someone with the defendant's driver's license in Virginia on the critical date. The defendant also provided a copy of Hunt's telephone records.

We granted the defendant's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that, under article first, § 7 of the Connecticut constitution, in order for a defendant to secure a hearing regarding the veracity of an affidavit supporting a warrant, the defendant must make a showing of either intentional dishonesty or reckless disregard for the truth by an affiant, and that a showing that the informant gave materially false information is insufficient?" State v. Glenn, 244 Conn. 934, 717 A.2d 232 (1998).² This appeal followed.

The standard currently applied in Connecticut to challenges directed to affidavits supporting warrant applications is the federal standard of Franks v. Delaware, supra, 438 U.S. 154. "In Franks v. Delaware, supra, 171, the United States Supreme Court held that the truth of an affidavit supporting a search warrant may be challenged at an evidentiary hearing when a satisfactory preliminary showing of deliberate falsity or reckless disregard of the truth on the part of the affiant has been made. State v. Morrill, 197 Conn. 507, 543, 498 A.2d 76 (1985); State v. Delmonaco, [194 Conn. 331, 334-35, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984)]; State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Just, 185 Conn. 339, 358, 441 A.2d 98 (1981); see Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964). If at such a hearing the allegation of falsity [by the affiants] is established by a preponderance of the evidence, and the remaining content of the affidavit is not independently sufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as when probable cause is lacking on the face of the affidavit. Franks v. Delaware, supra, 171-72." (Emphasis added.) State v. Telesca, 199 Conn. 591, 604-605, 508 A.2d 1367 (1991).

Until today, we have not had occasion to consider directly whether our state constitution affords a criminal defendant greater latitude than the federal constitution in presenting a subfacial challenge to an informant's veracity in a warrant application.³ After careful consideration, we are not persuaded that our constitution offers such sweeping protection.

"In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach; see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.'); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn. Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut's equal rights amendment was adopted); (3) federal precedent; see, e.g., State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.'); (4) sister state decisions or sibling approach; see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. Westfarms Associates, [192 Conn. 48, 58-59, 469 A.2d 1201 (1984)]; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. Westfarms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938); and (6) economic/ sociological considerations. See State v. Barton, [219 Conn. 529, 546, 594 A.2d 917 (1991)]; State v. Dukes, [209 Conn. 98, 115, 547 A.2d 10 (1988)]; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, `Connecticut's Free Speech Clauses: A Framework and an Agenda,' 65 Conn. B.J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, `State Constitutional Law: Federalism in the Common Law Tradition,' 84 Mich. L. Rev. 583 (1986) (book review)." (Emphasis in original.) State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).

Article first, § 7, of our state constitution provides in relevant part: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant ... shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." We have often noted the textual similarity of article first, § 7, to the language of the fourth amendment to the federal constitution.⁴State v. Miller, 227 Conn. 363, 381, 630 A.2d 1315 (1993). Construing that similar language, the United States Supreme Court concluded in Franks that the fourth amendment permits a defendant to challenge only "[t]he deliberate falsity or reckless disregard ... of the affiant, not of any nongovernmental informant." (Emphasis added.) Franks v. Delaware, supra, 438 U.S. 171. Moreover, it is significant that, prior to Franks, this court read the text of article first, § 7, to provide no subfacial challenges at all.

Neither does the history of article first, § 7, lend credence to the defendant's position. "[T]he sparse preconstitutional and early constitutional history of article first, § 7, would not support the conclusion that our state constitution mandated a stricter standard for the determination of probable cause than did the federal constitution." State v. Barton, supra, 219 Conn. 538 n.4; see also W. Horton, The Connecticut...