State v. Arpin

• Decision Date: 24 August 1982
• Citation: State v. Arpin, 188 Conn. 183, 448 A.2d 1334 (Conn. 1982)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Francis ARPIN.

Page 1334

448 A.2d 1334

188 Conn. 183

STATE of Connecticut v.Francis ARPIN.

Supreme Court of Connecticut.

Argued April 1, 1982.

Decided Aug. 24, 1982.

John M. Massameno, Asst. State's Atty., with whom, on the brief, were Harry S. Gaucher, State's Atty. and Thomas P. Cadden and Ernest J. Diette, Jr., Asst. State's Attys., for appellant(state).

Joette Katz, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for the appellee(defendant).

Before SPEZIALE, C. J., and PETERS, ARTHUR HEALEY, ARMENTANO and SHEA, JJ.

SPEZIALE, Chief Justice.

The defendant, Francis Arpin, was charged by information with possession of marihuana with intent to sell in violation of General Statutes § 19-480a(b), with possession of marihuana in violation of General Statutes § 19-481(c), and with illegal cultivation of marihuana in violation of General Statutes § 19-453(a).The defendant moved to suppress the use as evidence of marihuana and other material seized pursuant to a search warrant from or near his and Lorraine Arpin's residence located on Goshen Road in the Moosup section of Plainfield.As grounds for suppression the defendant alleged that the affidavit in support of the application for the search warrant did not establish probable cause on which the warrant properly could issue.The trial court granted the defendant's motion to suppress.Thereafter, the defendant's motion to dismiss the charges against him was granted.From that judgment the state, with the permission of the trial court as required by General Statutes § 54-96, has appealed.¹

On appeal, the state claims that it was error to suppress the evidence seized under the challenged warrant because the supporting affidavit contained sufficient information to establish probable cause.The state concedes that the supporting affidavit contained some information which was obtained in an unconstitutional manner, which information, therefore, could not be used as a basis upon which the warrant could be issued.The state maintains, however, that there was sufficient other information in the affidavit to establish probable cause independently of the tainted information.

In the application for the search and seizure warrant, the affidavit ² of the state police disclosed, inter alia, the following facts: On October 15, 1979, one of the affiants, Trooper Kerry B. Butler, was informed by a special agent of the Hartford office of the federal drug enforcement agency (DEA) that, according to information received from a special agent in the Chicago office of the DEA, six boxes containing marihuana were en route to the Arpin residence in Moosup via United Parcel Service (U.P.S.).These parcels were being allowed to proceed to the U.P.S. terminal in Hartford where they would be held for affiant Butler.Also on October 15, 1979, Butler and the other affiant, Trooper Mike Meehan, observed the residence to which the boxes were reported to be addressed and corroborated through motor vehicle registrations and utility records that Francis and Lorraine Arpin resided at that location.

On October 23, 1979, affiant Butler and two DEA agents went to the Hartford U.P.S. terminal and Butler took into possession six cardboard boxes marked Royal Crown Apples and addressed to Lorraine Arpin at the address on Goshen Road.Butler marked each address label with his initials and badge number.At this time Butler noted a strong odor coming from the boxes which he knew from four years of experience in drug enforcement to be the odor of marihuana.At some later point affiant Meehan opened one of the boxes, observed green plant material and performed a field test which confirmed the presence of marihuana.

The boxes were delivered to the Goshen Road address.Lorraine Arpin accepted delivery and signed a receipt.As related to the affiants by a DEA agent present at the time, the defendant remarked that the delivery was late and that he was about ready to put a tracer on the shipment because it was only supposed to have taken two or three days.

On the basis of the above facts, a search and seizure warrant was issued on October 23, 1979, by a judge of the Superior Court, Edelberg, J., for the seizure of the six boxes marked Royal Crown Apples and containing Butler's identifying marks.This warrant was executed the same day and the boxes were found outside the back door of the Arpin residence.Other materials which were in plain view, such as plastic bags containing marihuana residue and numerous marihuana plants growing on the property, were also seized.Because the boxes were found outside the Arpin residence, a second warrant was sought and obtained from the court, Goldberg, J., to search the house; and further materials from the house, including various plastic bags containing marihuana residue and a scale, were seized.³

The state concedes that opening one of the boxes in order to conduct a field test on its contents was unconstitutional and that the resulting information, which was contained in paragraph nine of the supporting affidavit, could not be used to support a finding of probable cause.The state maintains, however, that there was sufficient other information in the supporting affidavit to find probable cause independently of the taint of the information in paragraph nine.The state contends, therefore, that the trial court, Conway, J., erred in granting the defendant's motions to suppress and to dismiss.

The rule upon which the state relies is commonly referred to as the independent source rule.In often quoted language, Justice Powell has explained that "[t]he independent-source rule has as much vitality in the context of a search warrant as in any other....The obvious and well-established corollary is that the inclusion in an affidavit of indisputably tainted allegations does not necessarily render the resulting warrant invalid.The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause."United States v. Giordano, 416 U.S. 505, 554-55, 94 S.Ct. 1820, 1845-46, 40 L.Ed.2d 341(1974)(Powell, J., concurring in part and dissenting in part).

The rule was recognized by the federal courts prior to Giordano ;seeUnited States v. Giordano, supra, 555, 94 S.Ct. at 1845;United States v. McHale, 495 F.2d 15, 17(7th Cir.1974);United States v. Koonce, 485 F.2d 374, 379(8th Cir.1973);United States v. Tarrant, 460 F.2d 701, 703-704(5th Cir.1972);United States v. DePugh, 452 F.2d 915, 921(10th Cir.1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805, reh. denied, 409 U.S. 898, 93 S.Ct. 101, 34 L.Ed.2d 157(1972);Howell v. Cupp, 427 F.2d 36, 38(9th Cir.1970);James v. United States, 418 F.2d 1150, 1151-52(D.C.Cir.1969);United States v. Sterling, 369 F.2d 799, 802(3d Cir.1966);Anderson v. United States, 344 F.2d 792, 794(10th Cir.1965);United States v. Paroutian, 319 F.2d 661, 663(2d Cir.1963);Chin Kay v. United States, 311 F.2d 317, 321-22(9th Cir.1962);Parts Mfg. Corporation v. Lynch, 129 F.2d 841, 842-43(2d Cir.), cert. denied, 317 U.S. 674, 63 S.Ct. 79, 87 L.Ed. 541(1942);United States v. Epstein, 240 F.Sup. 80, 82-83 (S.D.N.Y.1965); and remains widely accepted at this time.SeeUnited States v. Tucker, 638 F.2d 1292, 1298-99(5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 132, 70 L.Ed.2d 111(1981);United States v. Agapito, 620 F.2d 324, 338(2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40(1980);United States v. Korman, 614 F.2d 541, 547(6th Cir.), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808(1980);United States v. Saitta, 612 F.2d 205, 208(5th Cir.), cert. denied, 446 U.S. 910, 100 S.Ct. 1838, 64 L.Ed.2d 263(1980);United States v. Williams, 594 F.2d 86, 95-96(5th Cir.1979), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114(1981);United States v. Romero, 585 F.2d 391, 395(9th Cir.1978), cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 492(1979);United States v. Marchand, 564 F.2d 983, 993-94(2d Cir.1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760(1978);United States v. Watts, 540 F.2d 1093, 1095 n.2(D.C.Cir.1976);United States v. DiMuro, 540 F.2d 503, 515(1st Cir.1976);United States v. Hunt, 496 F.2d 888, 894-95(5th Cir.1974);United States v. Adames, 485 F.Supp. 965, 970-71(E.D.N.Y.1980);United States v. Cognato, 408 F.Supp. 1000, 1005-1006(D.Conn.)aff'd, 539 F.2d 703(2d Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 806(1977).Moreover, although the United States Supreme Court has never expressly adopted the rule, virtually the same procedure is employed in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667(1978), to evaluate the consequences of a false statement in an affidavit.SeeUnited States v. Strini, 658 F.2d 593, 597(8th Cir.1981);United States v. Whitney, 633 F.2d 902, 908(9th Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208(1981);United States v. Federbush, 625 F.2d 246, 252(9th Cir.1980);Chin v. United States, 622 F.2d 1090, 1092(2d Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d 353(1981).The independent source rule has been noticed previously by this court;Dotson v. Warden, 175 Conn. 614, 623-24, 402 A.2d 790(1978); and we follow the rule in this case.

Employing the independent source rule in this case entails determining whether probable cause is established by the supporting affidavit excised of the illegally obtained information contained in paragraph nine.The question is not whether the issuing judge actually found probable cause independently of the illegal information, but rather whether the affidavit,...