State v. Calash

• Decision Date: 08 August 1989
• Docket Number: Nos. 13607-13610,s. 13607-13610
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William CALASH. STATE of Connecticut v. William GIROLOMONI. STATE of Connecticut v. Frank ROGERS. STATE of Connecticut v. Elliot G. VALLAS.

Page 660

563 A.2d 660

212 Conn. 485

STATE of Connecticut v. William CALASH.

STATE of Connecticut v. William GIROLOMONI.

STATE of Connecticut v. Frank ROGERS.

STATE of Connecticut v. Elliot G. VALLAS.

Nos. 13607-13610.

Supreme Court of Connecticut.

Argued June 6, 1989.

Decided Aug. 8, 1989.

William F. Dow III, with whom were Steven D. Ecker, New Haven, Gary A. Mastronardi, Bridgeport, Robert M. Casale, Branford, Michael J. McClary and, on the brief, Hugh F. Keefe, New Haven, for appellants (defendants).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, HULL and SANTANIELLO, JJ.

GLASS, Associate Justice.

The state filed informations against the defendants William Calash, William Girolomoni, Frank Rogers and Elliot Vallas, charging them with the crime of conspiracy to violate the state narcotic drug act. General Statutes §§ 21a-277(a) and 53a-48(a). ¹ The state also charged Rogers and Vallas with the crime of possession of a narcotic substance. General Statutes § 21a-279(a). ² Prior to trial, the defendants moved to suppress evidence of tape recorded telephone conversations. ³ The trial court granted Vallas' motion in part, but denied all other motions.

Thereafter, the defendants entered pleas of nolo contendere on all charges, conditional on their right to appeal from the trial court's denial of their motions to suppress. ⁴ Upon their appeal, the Appellate Court upheld the trial court's rulings. See State v. Vallas, 16 Conn.App. 245, 547 A.2d 903 (1988). We granted the defendants' petition for certification limited to the narrow question whether, under applicable provisions of the Wiretapping and Electronic Surveillance Act, General Statutes § 54-41a et seq., the wiretap panel's failure to make a written determination of probable cause that a "special need" existed to intercept wire communications over a public telephone requires the suppression of evidence of those communications. See State v. Vallas, 210 Conn. 803, 554 A.2d 744 (1989). We affirm the Appellate Court's judgment. ⁵

The relevant facts are as follows. See State v. Vallas, supra, 16 Conn.App. at 248-50, 256, 547 A.2d 903. On January 28, 1986, the state's attorney for the judicial district of New Haven applied to the state judicial wiretap panel for authorization to intercept the telephonic communications made by specified known and unknown persons to and from telephone facilities located at Calash's Branford residence. See General Statutes § 54-41b. ⁶ The supporting affidavit, submitted by state police detective William Schaeffer, Jr., and Branford police department detective George Nobile, alleged that Calash was involved in a cocaine trafficking network. The investigators sought the wiretap order to aid in discovering the source of the cocaine and the configuration of the distribution network. According to the affidavit, Schaeffer and Nobile had been unsuccessful in obtaining evidence by other means of surveillance or by the use of undercover police officers. On January 31, 1986, the judicial wiretap panel issued order 86-01, authorizing the interception of communications over two telephones in the Calash home from January 31 to February 14, 1986. The Calash phones were tapped from January 31 to February 11, 1986, when the interceptions were terminated because of information received by the state police that Calash had moved to Florida.

The intercepted conversations together with other information indicated that Calash and Girolomoni were business partners in the Rendezvous Cafe located in Branford, and that when Calash left for Florida, he authorized Girolomoni to handle the cocaine business along with running the cafe. Because of information gleaned from police surveillance, informants and wiretap order 86-01, the state police decided to seek additional wiretap orders. On February 20, 1986, the state's attorney, relying on additional affidavits submitted by Schaeffer and Nobile, made two applications to the judicial wiretap panel. On February 26, 1986, the judicial wiretap panel issued order 86-03, authorizing interception of communications to and from a telephone in Girolomoni's Branford home from February 26 to March 12, 1986.

On that same day, the panel also issued order 86-04, the order at issue in this appeal. Order 86-04 authroized interception of communications to and from two telephones, one private and one public, located at the Rendezvous Cafe, from February 26 to March 12, 1986. Order 86-04 expressly indicated that the panel had found probable cause to authorize the wiretap of both telephones with respect to eight of the nine probable cause requirements of General Statutes § 54-41d. ⁷ These included the panel's express findings that there was probable cause to believe that the defendants and others unknown were committing the specified narcotics offenses, that interception of communications over both telephones would provide material evidence that those crimes were being committed, that "other normal investigative procedures with respect to the offenses have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ," and that both telephones were being used in the commission of the offenses.

In correspondence with subsection (7) of § 54-41d, the panel also expressly stated in item B(7) of its order that "one of the facilities from which the wire communication is to be intercepted is public and the other facility is not public." The order made no express reference, however, as to whether the panel had found probable cause to believe that a "special need exists to intercept wire communications over" the public telephone. See General Statutes § 54-41d(7). ⁸ In accordance with General Statutes § 54-41e, ⁹ the order concluded that "[t]his order shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception ... and shall terminate upon attainment of the authorized objective ... or in any event within 15 days next succeeding the date of issuance of this order." Thereafter, the investigators intercepted communications pursuant to orders 86-03 and 86-04. The investigators included conversations intercepted under all three orders in affidavits filed in support of the arrest warrant applications. The defendants subsequently were arrested and charged with the narcotics offenses.

Prior to trial, the defendants moved to suppress evidence obtained from the wiretap conducted pursuant to order 86-04. In their motions, Calash and Vallas specifically claimed that the wiretap order was unlawful because the panel had failed to make a finding that there was probable cause to believe that a "special need" existed to tap the public telephone. Vallas and Rogers also specifically claimed that order 86-04 was facially invalid since it contained no express finding of special need. The trial court rejected these arguments. It ruled that although the panel had found that the telephone was public, the panel was not required under §§ 54-41d or 54-41e to determine whether the subject facility is public or, if so, whether there is probable cause to believe that there is a special need to tap it. The court found, nevertheless, that the underlying affidavit, "incorporated in the order, contained sufficient facts to warrant a determination and finding by the panel of probable cause that a special need existed." It concluded that "[t]he nature and use of the public telephone in the small bar involved here clearly warranted the authorized interception."

On appeal to the Appellate Court, all defendants claimed that order 86-04 was facially invalid for failing to contain a written statement that the panel had found a "special need" to tap the public telephone. In addition, Girolomoni argued that the accompanying affidavit contained inadequate information to support a finding of probable cause of special need. State v. Vallas, supra, 16 Conn.App. at 253-54, 547 A.2d 903. The Appellate Court rejected both claims, and affirmed the trial court's denial of the motions to suppress. It held that, although § 54-41d(7) requires the panel to find that there is probable cause "to believe that a special need exists to intercept wire communications over public facilities[,t]here is no statutory requirement contained ... in that section or in § 54-41e ... mandating a written finding of special need." (Emphasis added.) Id. at 254-55, 547 A.2d 903. It ruled, further, that the "issuance of order 86-04 carries with it the implicit conclusion that the statutory criteria [have] been met." Id. at 256, 547 A.2d 903. The court also concluded that the affidavit submitted with the application for order 86-04 supported a finding of probable cause to believe that a special need existed to intercept the public telephone conversations. Id.

On certification to this court, the defendants renew their claim that §§ 54-41d and 54-41e require the wiretap panel to make an express written finding of "special need." According to this argument, § 54-41e requires, at a minimum, a pro forma written statement that fully tracks the statutory language of § 54-41d(1) through (9). The defendants argue, therefore, that the absence of a written finding of special need constitutes an "unlawful" and a "facially invalid" order requiring suppression under General Statutes § 54-41m, ¹⁰ even if the wiretap panel did in fact, have probable cause to find a "special need." We are not persuaded.

Contrary to the trial court's conclusion, § 54-41d(7) plainly requires the issuing panel to find probable cause that a special need exists to intercept public facility communications. Cf. State v. Chiarizio, 8 Conn.App. 673, 678-79, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986) (where nothing in...