State v. Brown
| Decision Date | 26 July 1988 |
| Docket Number | No. 5268,5268 |
| Citation | 543 A.2d 750,14 Conn.App. 605 |
| Parties | STATE of Connecticut v. Herbert BROWN. |
| Court | Connecticut Court of Appeals |
William Holden, Public Defender, with whom, on the brief, were Michael Jachimczyk, Diane Sweeney, Mark Buebendorf and John Anderson, Certified Legal Interns, for appellant (defendant).
C. Robert Satti, Jr., Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (State).
Before DUPONT, C.J., and BORDEN and FOTI, JJ.
The defendant appeals from the judgment of conviction, following his conditional plea of nolo contendere, of conspiracy in violation of General Statutes § 53a-48, and of unlawful possession of cocaine with intent to sell or dispense in violation of General Statutes § 21a-277(a). The defendant's plea followed the denial by the trial court of his oral motion to suppress evidence gathered pursuant to a search warrant for the search of his home, 1 and the denial of his written motion dated July 30, 1985, to suppress the contents of an intercepted wire communication. 2
The principal issues on this appeal are (1) whether the search warrant for the defendant's home was supported by probable cause, (2) whether there is a good faith exception to the exclusionary rule under Connecticut law, and (3) whether the requirement of General Statutes § 54-41k that an inventory be served "on persons not named in [a wiretap] order or application whose communications were intercepted" can only be complied with by personal service. We find no error.
On June 8, 1984, Senior Inspector John Solomon, of the division of criminal justice of the state, and Detective Paul Lengyel, of the Bridgeport police department, applied for and secured from a Superior Court judge a search and seizure warrant for the defendant's person and for his residence located at 487 Woodlawn Avenue, Bridgeport. The warrant was executed on the same day. The fruits of that search are the subject of the defendant's oral motion to suppress.
The affidavit of Solomon and Lengyel supporting their application was based in part on the results of certain telephone wiretaps authorized by a panel of Superior Court judges pursuant to chapter 959a of the General Statutes; General Statutes §§ 54-41a through 54-41t; our wiretapping and electronic surveillance statute. Those wiretaps were authorized for certain telephones located at 1477 Central Avenue, Bridgeport, the residence of Jean Lanham, and for certain telephones located at 147 Trumbull Avenue, Bridgeport, the residence of Butch Hall. The affidavit of Solomon and Lengyel described certain intercepted telephone calls from Lanham and Hall's telephones to a certain telephone or telephones purportedly located at the defendant's Woodlawn Avenue residence, in which the defendant's conversations were intercepted. The defendant was sent, by certified mail, a timely inventory pursuant to General Statutes § 54-41k notifying him that his conversations had been intercepted.
The defendant moved to suppress the evidence gathered as a result of the search of his residence. The basis of his motion to suppress was that the warrant was insufficient under both the federal and state constitutions because it was not supported by probable cause. The state argued that there was probable cause for the warrant, and, in the alternative, that the exclusionary rule should not apply because the officers acted in good faith reliance on the warrant. With respect to the defendant's motion to suppress his intercepted conversations, the defendant claimed that he did not receive the inventory of the wiretap. The state claimed that he did receive the inventory sent to him by certified mail.
After a full evidentiary hearing, the trial court ruled that (1) the warrant was not supported by probable cause, but (2) the good faith exception to the exclusionary rule applied under the state as well as the federal constitution, and the state had established good faith, and (3) the defendant did receive the inventory sent to him pursuant to General Statutes § 54-41k. Following the defendant's conditional plea of nolo contendere pursuant to General Statutes § 54-94a, judgment of conviction was rendered. This appeal followed.
The defendant first claims that the trial court erred in denying his motion to suppress the evidence yielded by the search pursuant to the warrant. He argues (1) that General Statutes § 54-33f and Practice Book §§ 821 and 822 require suppression of unlawfully obtained evidence without regard to the good faith of the officers executing the search, and (2) that article first, § 7, of the Connecticut constitution does not contain a good faith exception to the exclusionary rule. The state first responds by claiming that we need not reach those issues because the trial court erred in ruling that probable cause was lacking. Thus, the state presents this claim as an alternate ground upon which to affirm the judgment of the trial court. Practice Book § 4013(a)(1). We therefore first consider whether the affidavit supporting the search warrant established probable cause. We conclude that it did.
The first eighteen paragraphs of the affidavit disclose the following facts: Solomon and Lengyel are experienced law enforcement officers, with a total of thirty- years of police experience including numerous investigations of crimes involving the illegal sale of narcotics. In March, 1984, Solomon and another law enforcement officer met with a confidential informant, whose reliability was established by several prior incidents in which he gave information leading to arrests for illegal sale of narcotics and to seizure of narcotics. This informant told the officers that he had personal knowledge that Butch Hall, a black male approximately forty-five years old, who resided at 147 Trumbull Avenue, Bridgeport, was conducting a large-scale narcotics operation with several persons under his control, and that those persons were receiving cocaine from Hall. He also reported that Jean Lanham, Hall's girlfriend, resided at apartment 9-C, 1477 Central Avenue, Bridgeport, where she was actively involved in selling narcotics for Hall. The informant stated that he had been in Lanham's apartment several times with Hall and Lanham, where he observed cocaine and large sums of money in their possession. The informant also stated that between January 1, 1984, and May 1, 1984, he bought narcotics from either Lanham or Hall on several occasions at Lanham's apartment.
On April 12, 1984, Lengyel met with another confidential informant whom Lengyel had known for approximately ten years. This informant's reliability was established by the fact that in the past he had supplied Lengyel with information leading to arrests and convictions for crimes involving the illegal sale of narcotics. This informant stated that he had personal knowledge that Hall was a major source of narcotics in the Bridgeport area and that he had several other persons dealing for him. The informant reported that Hall operates his drug operation from his house, located at 147 Trumbull Avenue, Bridgeport, and from the apartment of his girlfriend known as "Jean," on Central Avenue, Bridgeport. The informant stated that he had bought cocaine on several occasions in Hall's residence at 147 Trumbull Avenue.
The affidavit also disclosed that on May 15, 1984, a three judge panel authorized wire interceptions over telephone facility "(203) 336-8287, located in the apartment of Lanham, apartment 9-C, 1477 Central Avenue." Between May 15, 1984, and June 7, 1984, Solomon and other law enforcement officers intercepted numerous incoming and outgoing telephone calls over that facility which were determined to be drug related calls pertaining to the sale of cocaine. Without detailing further the contents of this part of the affidavit, it is clear from the intercepted phone calls on May 22, 1984, and May 23, 1984, and from subsequent surveillances made by law enforcement officers, that there was probable cause to believe that Lanham's apartment and telephone were used by Lanham and Hall as a location for the sale of cocaine.
On May 29, 1984, a three judge panel authorized a wiretap of the telephone facilities (203) 372-4264 and (203) 372-9701, both located at the residence of Hall located at 147 Trumbull Avenue. On May 30, 1984, Solomon and another law enforcement officer began intercepting telephone calls over these facilities. They determined that several incoming and outgoing calls pertained to the sale of narcotics.
To this point in the affidavit, the defendant was not mentioned. The next five paragraphs of the affidavit provide the basis for the determination of probable cause that the defendant was violating or conspiring to violate the narcotics laws at his residence located at 487 Woodlawn Avenue, Bridgeport.
Paragraph nineteen recited that on May 30, 1984, at 9:17 p.m. an outgoing call from Lanham's phone, (203) 336-8287, was made to telephone facility (203) 371-4251, which "The Southern New England Telephone Company records indicate ... is located at 487 Woodland Avenue, Bridgeport, the subscriber being one Herbert Brown," the defendant. The wiretap revealed that the conversation was between Hall's daughter, Shonda, and "Herb," and between "Jean" and "Herb." Both Shonda and Jean were looking for Hall at 487 Woodlawn Avenue.
Paragraph twenty stated that on June 1, 1984, at approximately 8:04 a.m., an outgoing call from Hall's residence was intercepted, disclosing a conversation between Hall and "Herb."
Paragraph twenty-one stated that on June 2, 1984, at 10:21 p.m., an outgoing call was intercepted over telephone facility (203) 372-9701, ...
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