State v. Ives

Page 789

654 A.2d 789

37 Conn.App. 40

STATE of Connecticut v. Milton E. IVES, Sr.

No. 12620.

Appellate Court of Connecticut.

Argued Nov. 1, 1994.

Decided Feb. 21, 1995.

Hubert J. Santos, with whom, on the brief, was Hope C. Seeley, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, were Patricia Swords, State's Atty., and Nina Rosen, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and HEIMAN and SPEAR, JJ.

SPEAR, Judge.

The defendant appeals from a judgment of conviction of larceny in the first degree by receiving stolen property in violation of General Statutes §§ 53a-119(8) ¹ and 53a-122(a)(2), ² larceny in the first degree as an accessory in violation of General Statutes §§ 53a-8 ³ and 53a-122, and burglary in the third degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-103. ⁴ The defendant claims that the trial court improperly (1) denied his motion to suppress evidence, (2) limited his cross-examination of the complainant, (3) denied his motion for acquittal that was based on a double jeopardy claim, and (4) denied his motion for acquittal that was based on the theory that, as a matter of law, one cannot be an accessory to an accessory.

The jury reasonably could have found the following facts. The defendant, Milton Ives, owned and operated a used furniture and antique shop known as the Barn Sale. The defendant buys and sells and collects coins. In November, 1990, Daniel Whalen contacted the defendant and offered to sell him some items. The defendant met Whalen at Whalen's home and viewed the items that Whalen was interested in selling. Whalen also showed the defendant his coin collection, which included a Standing Liberty quarter collection. The defendant complimented Whalen on his collection and offered to buy a rare 1916 Standing Liberty quarter. During this meeting, the defendant saw Whalen retrieve the coins from a safe in his laundry room.

In December, 1990, the defendant asked Rodney Stevens if he knew anyone who would burglarize Whalen's home and steal the coins. The defendant offered Stevens $5000 for Whalen's 1916 Standing Liberty quarter. Pursuant to this conversation, Stevens arranged for Ronald Foley and Angelo Piazza to steal the coins. ⁵ On January 3, 1991, Whalen reported to the state police that his coin collection had been stolen.

On January 15, 1991, Foley was arrested on other charges and informed the police of his and others' participation in the burglary. Stevens was arrested in March, 1991, for his part in the burglary. On June 12, 1991, the state police learned that the defendant had sent coins that matched the description of the stolen coins to the American numismatic association certification service (ANACS) for certification. On June 21, 1991, the police executed a search warrant at the Barn Sale. Whalen accompanied the police and identified nineteen coins as his. The defendant was subsequently arrested, tried and convicted.

I

The defendant first claims that the trial court improperly denied his motion to suppress all evidence found from the search of the Barn Sale. He challenges the validity of the warrant on three grounds: (1) the warrant affidavit failed to establish probable cause, (2) the information set forth in the warrant affidavit was stale, and (3) the affiant recklessly or intentionally omitted facts that negated probable cause in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We are not persuaded by the defendant's arguments.

A

The defendant first asserts that the search warrant affidavit did not establish probable cause because it contained insufficient facts from which a reasonable inference could be drawn that the items to be seized would be found either at his residence or business. He claims that the search violated the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, ⁶ and, therefore, the evidence obtained pursuant to the search of his business should have been suppressed by the trial court. We do not agree.

"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 the original; internal quotation marks omitted.) State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994). The defendant claims that the warrant affidavit did not satisfy the second element needed to establish probable cause because the affidavit failed to establish that the items would be found at either the defendant's business or residence.

" 'The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed.' " State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992). "In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.... We view that information, however, in the light most favorable to the issuing judge's determination of probable cause, and [i]n a doubtful or marginal case ... our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate's determination." (Citation omitted; internal quotation marks omitted.) Id., at 216, 613 A.2d 224.

From the allegations set forth in the search warrant, the issuing magistrate reasonably could have concluded that there was probable cause that the stolen property would be found at either the defendant's residence or his place of business. On June 20, 1992, search and seizure warrants were issued to seize the contents of the stolen safe, including, but not limited to, numerous coins, a revolver, oriental rugs, and any records showing business transactions with Stevens. Paragraph six of the affidavit sets forth the facts showing that the defendant had knowledge of the coins and their location in the safe. It stated that the defendant visited Whalen's home a few weeks prior to the burglary, and at this time, the defendant saw the coins and where they were kept in the safe. Paragraph eleven of the affidavit stated that the defendant told Whalen that he did not own a 1918 over 17 Standing Liberty quarter and that his 1916 Standing Liberty quarter was of an inferior grade. From this information, coupled with the fact that the defendant is a coin collector and offered Whalen between $3000 and $5000 for the 1916 coin, the magistrate could reasonably have inferred that the defendant had a motive to acquire coins belonging to Whalen.

The affidavit contained further facts that supported an inference of probable cause. It stated that the defendant admitted knowing Stevens, and that Stevens had tried to sell coins consistent with Whalen's collection at about 2:30 p.m. on January 3, 1991, the day of the burglary. It also alleged that the defendant submitted coins to ANACS for appraisal on January 23, February 1, and February 4, 1991. The dates, denominations and grades of these coins were identical to the coins that were stolen from Whalen.

It was reasonable for the issuing judge to infer that by June 20, 1991, when the affidavit was signed, the coins had been returned by ANACS to the defendant. As the defendant is an avid coin collector who expressed an interest in Whalen's coins because of their superior quality, it was a reasonable inference for the judge to conclude that the defendant would retain at least some of the coins at either his business or residence.

"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...." (Citations omitted; internal quotation marks omitted.) State v. Vincent, 30 Conn.App. 249, 257, 620 A.2d 152 (1993), aff'd, 229 Conn. 164, 640 A.2d 94 (1994). It was reasonable for the magistrate to conclude that the coins would be stored either among the defendant's collections at his residence or among the items for sale at his business, and, accordingly, probable cause existed to search both places.

B

The defendant next claims that the warrant was invalid because the facts alleged in the affidavit were too remote in time from the actual search. He argues that the four month lapse between the burglary and the issuance of the search warrant caused the factual allegations to become stale, and, thus, there was no probable cause to believe that items listed in the affidavit would be found in his residence or business on June 21, 1991. We disagree.

Proof of existence of probable cause for issuance of a search warrant must include facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time. Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932); State v. Vincent, supra, 229 Conn. at 174, 640 A.2d 94. In our determination of whether the four month passage of time precluded a finding of probable cause there is no formulaic rule to be applied, but rather the question of staleness must be determined on a case by case basis. State v. Vincent, supra, at 174, 640 A.2d 94.

In this case, the police officers were given authority to search the defendant's business and residence for the items that were stolen from Whalen's safe, specifically, numerous valuable coins. They were also authorized to search for any canceled checks or records evidencing business transactions with Stevens. It was reasonable to...