State v. DeChamplain

• Citation: 179 Conn. 522,427 A.2d 1338
• Court: Supreme Court of Connecticut
• Decision Date: 05 February 1980
• Parties: STATE of Connecticut v. Douglas A. DeCHAMPLAIN.

Page 1338

427 A.2d 1338

179 Conn. 522

STATE of Connecticut v. Douglas A. DeCHAMPLAIN.

Supreme Court of Connecticut.

Argued Oct. 4, 1979.

Decided Feb. 5, 1980.

[179 Conn. 523] Stuart M. Schimelman, Asst. State's Atty., with whom, on brief, were C. Robert Satti, State's Atty., and D. Michael Hurley, Asst. State's Atty., for appellant (State).

Peter W. Rotella, New London, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, SPEZIALE, PETERS and HEALEY, JJ.

SPEZIALE, Associate Justice.

In an information filed by the state's attorney for the judicial district of New London, the defendant was charged with possession of over a kilogram of marihuana with intent to sell by a person not drug-dependent in violation of § 19-480a(b) of the General Statutes. ¹ The defendant filed a motion to suppress the use as evidence of marihuana that was seized from apartment 7A, Jedholme Apartments, route 169, Lisbon, on the grounds that the affidavit in support of the application for the search warrant did not establish probable cause to believe that marihuana, in fact, was within these premises. The motion to suppress was granted by the trial court (Spallone, J.). The state's motion to reargue the motion to suppress was denied, and on the same day the defendant's motion to dismiss was granted. With the permission of the trial court, the state appealed from the judgment of dismissal.

The only issue presented is whether the affidavit in support of the application for the search and seizure warrant established probable cause to believe that marihuana was located at apartment 7A, Jedholme Apartments.

In the application for the search and seizure warrant, the affidavit of the police disclosed, inter alia, the following facts: ² On June 15, 1978, Trooper David Zupnik of the state police learned from Tim Malo that Malo had sold $15,000 worth of marihuana, and that he had acquired the drug from a person named "Doug," whom he contacted by telephone at number 376-2266. Trooper Zupnik learned from the state police criminal intelligence division that this telephone number was listed to Rita DeChamplain at apartment 7A, Jedholme Apartments. Malo would meet "Doug," who operated a yellow MG, in Canterbury, and Malo would buy the marihuana for $425 per pound. On June 27, 1978, at 4:05 p. m., Malo telephoned "Doug" at the above number and verified that a $425 deal he previously had made to purchase marihuana would take place at 4:30 p. m. on Depot Road, Canterbury. At about 3:53 p. m. that same day, Officer Frank Gavigan of the Norwich police saw a tan MG ³ registered to Douglas A. DeChamplain parked near the building that houses apartment 7A, Jedholme Apartments. Officer Gavigan observed the MG leave the apartment complex area at 4:20 p. m. and watched it until it turned east onto Depot Road; the car did not stop en route.

Trooper Zupnik observed the MG arrive at the location where the drug sale was arranged to take place and saw it stop behind a vehicle occupied by Tim Malo and state police trooper Michael Meehan, who was working undercover. Trooper Zupnik learned from Trooper Meehan that DeChamplain, the operator of the MG, showed Malo and him a plastic bag containing plant material which DeChamplain represented to be one pound of marihuana. At that time DeChamplain, "of" apartment 7A, Jedholme Apartments, was arrested on Depot Road, Canterbury and charged with possession of marihuana with intent to sell and with possession of over four ounces of marihuana. Two plastic bags containing plant materials were seized at the time of DeChamplain's arrest; a field test of this substance confirmed the presence of marihuana.

On the basis of the above facts, a search and seizure warrant was issued by a judge of the Superior Court (Quinn, J.) for the seizure of marihuana, scales, and drug records from apartment 7A, Jedholme Apartments.

As previously noted, the state, with the permission of the trial court, has appealed from the judgment dismissing the case. The state claims that the trial court erred in ordering the suppression of the use of marihuana as evidence when it decided that the affidavit in support of the application for the search and seizure warrant did not establish probable cause to believe that marihuana was located in apartment 7A. ⁴ We do not agree with the claim of the state and hold that the trial court did not err in ruling that the facts set forth in the affidavit do not establish probable cause to believe that marihuana would be found at apartment 7A.

The fourth amendment to the United States constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." ⁵ See The fourth amendment " 'protects the privacy and security of persons in two important ways. First, it guarantees "(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, this Court has interpreted the amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the warrant clause. See, e. g., Mincey v. Arizona, 437 U.S. 385, 390 (98 S.Ct. 2408, 2412, 57 L.Ed.2d 290) (1978); United States v. Chadwick, 433 U.S. 1, 9 (97 S.Ct. 2476, 2481, 53 L.Ed.2d 538) (1977); United States v. United States District Court, 407 U.S. 297, 317 (92 S.Ct. 2125, 2136, 32 L.Ed.2d 752) (1972); Katz v. United States, 389 U.S. 347, 357 (88 S.Ct. 507, 514, 19 L.Ed.2d 576) (1967); Agnello v. United States, 269 U.S. 20, 33 (46 S.Ct. 4, 6, 70 L.Ed. 145) (1925). In the ordinary case, therefore, a search of private property must be both reasonable and performed pursuant to a properly issued search warrant.' (Emphasis added.) Arkansas v. Sanders, 442 U.S. 753, 757-58, 99 S.Ct. 2586, 2589-90, 61 L.Ed.2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)." State v. Federici, 179 Conn. 46, 51-52, 425 A.2d 916, 919, 920 (1979).

                also Conn.Const. art.  I § 7 ("no warrant to search any place, or to seize any person or things, shall issue without ... probable cause supported by oath or affirmation").  6 " 'Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states.  Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726.'  State v. Licari, 153 Conn. 127, 132, 214 A.2d 900, 902."  State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972)
                

In reviewing an affidavit for a search and seizure warrant we must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of the warrant. State v. Williams, 169 Conn. 322, 326, 363 A.2d 72 (1975); State v. Rose, 168 Conn. 623, 627-28, 362 A.2d 813 (1975); State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967). The judge is entitled to rely on his own common sense and the dictates of common experience, although the standard for determining probable cause is an objective one. State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972) (the fourth amendment does not deny "the support of the usual inferences which reasonable men draw from evidence"). See also State v. Romano, 165 Conn. 239, 245, 332 A.2d 64 (1973); Spinelli v. United States, 393 U.S. 410, 415, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1968). Purely conclusory affidavits by the affiant or informant that he or she believes that probable cause exists, however, cannot be relied upon; the underlying circumstances upon which that belief is based must be detailed in the affidavit. Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933); State v. Rose, supra, 168 Conn. 627, 362 A.2d 813; State v. Allen, supra. "The issuing authority must determine for himself the persuasiveness of the facts relied on to show probable cause.

Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723." State v. Allen, supra, 155 Conn. 391, 232 A.2d 319. The issuing judge must not merely serve as a rubber stamp for the police. State v. Rose, supra, 168 Conn. 627, 362 A.2d 813.

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; State v. Doe, 115 N.H. 682, 685, 371 A.2d 167 (1975); 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978) §§ 3.1(b) and 3.7; cf. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) ("mere" evidentiary materials may be validly seized as well as instrumentalities, prints, weapons, and contraband); and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. State v. Doe, supra 115 N.H. 685, 371 A.2d 167; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925); 1 LaFave, Search and Seizure, supra, §§ 3.1(b) and 3.7; comment, Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U.Chi.L.Rev. 664, 687 (1961). See also Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1963); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); State v. Rose, supra, 168 Conn. 629-32, 362 A.2d 813; Kamisar, LaFave & Israel, Modern...