State v. Torres

Page 1327

651 A.2d 1327

36 Conn.App. 488

STATE of Connecticut v. Pedro TORRES.

No. 12442.

Appellate Court of Connecticut.

Argued Sept. 23, 1994.

Decided Jan. 3, 1995.

Certification Denied Feb. 16, 1995.

Jeffrey A. Jones, with whom, on the brief, was Elena M. Gervino, Hartford, for appellant (defendant).

Pamela S. Meotti, Deputy Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Thomas E. Prior, Asst. State's Atty., for appellee (State).

Before LAVERY, LANDAU and FRANCIS X. HENNESSY, JJ.

LAVERY, Judge.

The defendant, Pedro Torres, appeals to this court from the judgment of conviction, after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278, and conspiracy to distribute narcotics in violation of General Statutes §§ 21a-277(a) and 53a-48(a). The defendant claims (1) that the trial court improperly found that probable cause existed to issue a search warrant based solely on information from an informant after the court had excised two corroborating paragraphs from the warrant affidavits because it found that the police had conducted an unlawful surveillance of the defendant, and (2) that the trial court improperly denied the defendant's motion to suppress evidence obtained during the warrantless search of the hallway. We affirm the judgment of the trial court.

As to the first claim, the following is set forth in the affidavits: ¹ On January 9, 1992, a confidential informant notified Detectives Robert Kanaitis and Richard Murzin of the Hartford police department that a "Dominican narcotic organization was actively dealing large quantities of heroin in the city of Hartford." The informant, who had worked with the police for seventeen years and whose information had led to numerous seizures, arrests and convictions, stated that large quantities of heroin were being kept and sold from apartments C-4 and C-7 at 23 Marshall Street. The informant stated that he had observed "the purchase of 100 yellow bags of heroin from a Hispanic male known as Pedro [the defendant] who is described as being 5'5" tall, 140 pounds, short black hair, light complexion." The sale occurred in apartment C-7, but the informant saw the defendant walk to apartment C-4 to retrieve the heroin.

Four days after the informant's call, the detectives met with Robert Lipman, the owner of 23 Marshall Street. They dressed as maintenance persons and, with Lipman's approval, conducted a surveillance of apartments C-4 and C-7. The detectives knocked on the door of C-7 and stated that they were from the maintenance office and were installing smoke alarms in the apartments. They were admitted by a short, Hispanic male, approximately 5 feet 5 inches tall and weighing 140 pounds, with short hair, a mustache and a light complexion, who was later identified as the defendant. The detectives observed a large amount of United States currency and two beepers. Two Hispanic women were in the apartment, one of whom quickly removed the money from the table and placed it in a gym bag. The detectives installed a new battery in the smoke alarm and left the premises.

The detectives then knocked on the door of C-4 and were admitted by the same man who had admitted them to C-7. He appeared to be nervous. The detectives noticed that the apartment had very little furniture. They began to clean debris from the bathroom fan motor and requested a plastic bag for the debris. The defendant brought them the kitchen garbage bag, in which the officers observed many empty boxes of plastic sleeves, all commonly used to bag heroin, empty tape cases, glassine bags, and small rubber bands, commonly used to bundle ten packs of heroin. On the kitchen counter, in plain view, the detectives noticed a bottle marked "lactose" and several glassine bags. An unidentified woman quickly placed the lactose bottle in the kitchen cabinet. The detectives left after cleaning the fan and tightening loose screws in an intercom.

On the basis of the informant's tip and the corroborating evidence, the detectives sought and obtained search warrants for 23 Marshall Street, apartments C-4 and C-7. The warrants were issued on January 13, 1992, four days after the informant's tip and the same day that the detectives had entered the apartments. That evening, the detectives executed the search warrants and arrested the defendant and four other individuals.

From apartment C-4, the detectives seized two bags containing a total of 61.3 grams of heroin and 300 glassine bags containing a total 6.5 grams of heroin, each stamped with the word "MORTAL" and a skull. They also recovered a scale, a sifter, a pestle, a .38 caliber gun with five rounds of ammunition, an ink pad and a stamp with a skull and the word "MORTAL," tape, rubber bands, bags, boxes of empty bags and tape containers. A search of apartment C-7 yielded $13,800, two beepers and records of drug sales. Murzin testified that the heroin recovered in the search would be worth approximately $85,000 on the street.

The defendant filed a motion to suppress all evidence seized in the case, arguing that it was "obtained in violation of the defendant's rights under the fourth and fourteenth amendments to the United States constitution and in violation of the defendant's rights under article first, § 7, of the Connecticut constitution." He then filed an amended motion to suppress all evidence seized under authority of the search warrants.

The defendant claimed that paragraphs three and four of the affidavits, which described the surveillance, should be excised from the affidavits because the search was unlawful. He argued that the remaining paragraphs would not support a finding of probable cause. In a second amended motion to suppress, the defendant sought an order barring testimony about the "police ruse," in the event that the court struck paragraphs three and four of the affidavits but concluded that the remainder supported a finding of probable cause.

The court found that the defendant had not consented to the search of C-4 or C-7 and that it was unlawful. The trial court considered the warrant affidavits "exclusive of paragraphs three and four." The court analyzed the remainder of the affidavits under article first, § 7, of the Connecticut constitution. ²

In its oral memorandum of decision, the trial court found that "the facts stated in paragraphs one, two and five provided a substantial basis for the magistrate's conclusion that there was a fair probability that illegal drugs and proceeds of narcotic transactions would be found in the respective apartments on January 13, 1992." The trial court articulated the following reasons for its conclusion. First, the court noted that the affiants had described the confidential informant as "most reliable," that the informant had worked with the police for a period of seventeen years, and the informant's information had led to many seizures, arrests and convictions. In addition, the informant personally observed the events and details described in paragraph one of the affidavits, satisfactorily indicating the informant's basis of knowledge.

From the informant's statement that large quantities of heroin were "being kept and sold at two separate apartments located at twenty-three Marshall Street C-4 and C-7 in Hartford," the court inferred that the informant had not viewed an isolated transaction, but part of an ongoing pattern of narcotics activity. Finally, the court noted that the place to be searched was a residence, and stated, "the very nature of the enterprise wherein the narcotics were kept in one apartment and the proceeds in a different apartment connotes a certain sophistication intended to thwart effective police investigation and prosecution. This sophistication connotes other than an isolated sale." The court therefore denied the defendant's amended motion to suppress, but granted his second amended motion to suppress, thus striking paragraphs three and four from the affidavits and barring testimony describing the police ruse.

The trial court's decision is not erroneous, despite the presence of improperly obtained evidence in the affidavit, if the lawfully obtained evidence considered by itself is sufficient to establish probable cause. State v. Ostroski, 201 Conn. 534, 544-45, 518 A.2d 915 (1986); State v. Arpin, 188 Conn. 183, 190-91, 448 A.2d 1334 (1982); State v. Palangio, 24 Conn.App. 300, 306, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Rogers, 18 Conn.App. 104, 556 A.2d 1030 (1989). "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; and (2) there is probable cause to believe that the items named will be found in the place to be searched." State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991); State v. Sivri, 231 Conn. 115, 142, 646 A.2d 169 (1994).

In determining whether an affidavit established probable cause to issue a search warrant, the reviewing court applies the "totality of the circumstances" test set forth in State v. Barton, supra, 219 Conn. at 544, 594 A.2d 917. The court must make "a 'practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the "veracity" and the "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " State v. Rodriguez, 223 Conn. 127, 134-35, 613 A.2d 211 (1992).

"When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant's knowledge and the basis on which the police have determined that the information is reliable. If the warrant...