State v. DeFusco

• Decision Date: 21 May 1992
• Docket Number: No. 10255,10255
• Citation: 27 Conn.App. 248,606 A.2d 1
• Court: Connecticut Court of Appeals
• Parties: , 60 USLW 2683 STATE of Connecticut v. Paul DeFUSCO.

Page 1

606 A.2d 1

27 Conn.App. 248, 60 USLW 2683

STATE of Connecticut v. Paul DeFUSCO.

No. 10255.

Appellate Court of Connecticut.

Argued Jan. 8, 1992.

Decided March 31, 1992.

Certification Granted May 21, 1992.

John R. Donovan, Cromwell, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom were Lisa A. Riggione, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., and Susan C. Marks, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

DUPONT, Chief Judge.

The defendant challenges the trial court's denial of his motion to suppress evidence seized pursuant to a search warrant. Specifically, the defendant claims that the affidavit used to secure the warrant authorizing a search of his residence did not establish the requisite probable cause to justify the issuance of the search warrant. As part of this claim, the defendant contends that the warrant affidavit improperly relied on items seized from his garbage. The basic issue of this appeal is whether the Connecticut constitution prohibits a warrantless seizure and search of garbage left outside the curtilage of a defendant's residence. Because we hold that article first, § 7, of the Connecticut constitution, like the fourth amendment to the United States constitution, does not prohibit the warrantless search and seizure of garbage left at the curbside for collection and disposal by waste removal personnel, we conclude that the trial court properly determined that the search warrant was supported by probable cause. We, therefore, affirm the judgment of the trial court.

On October 12, 1990, the Hamden police executed a search warrant for 19 Building Brook Road, the residence of the defendant and his wife. In the course of their search, the police seized narcotics, drug paraphernalia, weapons and cash. The defendant was then arrested and charged with various narcotics offenses.

The warrant authorizing the search was based on the affidavit of two members of the Hamden police department who had experience in conducting narcotic investigations that led to arrests and convictions. It stated that on August 15, 1990, Investigator Charles Grady received information from a "known and reliable informant" who had been used numerous times for various narcotics cases, alleging that the defendant, a resident of 19 Building Brook Road in Hamden, was selling ounce quantities of cocaine from his residence and sold one half of a kilo every two weeks. The informant related, according to the affiant, that the defendant was a construction foreman and supplemented his income from sales of cocaine. The informant described the vehicles owned by the defendant. The informant also described the person from whom the defendant allegedly received his cocaine and how the two of them obtained the cocaine from two Hispanic males. Checking Hamden police records, the affiants found that there had been an anonymous complaint in 1988 that the defendant was selling ounce quantities of cocaine from his home on Building Brook Road.

On September 5, 1990, Grady conducted a "garbage pull" ¹ from in front of the defendant's house. As a result of that garbage pull, two prescription bottles bearing the defendant's name and three small glassine bags, one of which was stamped "Bad Med," were found. The affiant stated that the glassine bags were the type used to package cocaine and heroin. Further, it was alleged that on September 26, 1990, a second garbage pull was made. ² Among the contents of the garbage seized on September 26 was a prescription bottle bearing the defendant's name, several short cut straws, and two glassine bags of the type used to package cocaine and heroin. On September 27, 1990, the police again met with the confidential informant, who told them that the defendant had a longtime heroin addiction. The police checked with the department of motor vehicles and the telephone company to confirm that the defendant lived in the house in question.

After the trial court denied his motion to suppress, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a). He now appeals pursuant to § 54-94a and Practice Book § 4003, claiming that it was improper for the trial court to have denied the motion to suppress.

Article first, § 7, of our constitution provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." Like the fourth amendment to the United States constitution, ³ which it closely resembles, article first, § 7, safeguards the privacy, the personal security, and the property of the individual against unjustified intrusions by agents of the government. State v. Barton, 219 Conn. 529, 540, 594 A.2d 917 (1991).

"One of the principal means by which the warrant requirement protects the privacy and property of the individual is by the interposition of a neutral and detached magistrate who must judge independently the sufficiency of an affidavit supporting an application for a search warrant. Whether applying the fourth amendment or article first, § 7, of our own constitution, we have frequently recognized that a magistrate issuing a warrant cannot form an independent opinion as to the existence of probable cause unless the affidavit supporting the warrant application sets forth some of the facts upon which the police have relied in concluding that a search is justified.... When a police officer seeking a search warrant relies on hearsay information supplied by confidential informants rather than on personal knowledge and observations, certain additional facts are necessary to ensure that the magistrate's decision to issue the warrant is informed and independent." Id. at 540-42, 594 A.2d 917.

State v. Barton, supra, contains a reformulation of the standard to be applied by our courts in reviewing the sufficiency of a search warrant application based on information supplied to the police by a confidential informant. The Barton court concluded that "a 'totality of the circumstances' analysis of the probable cause requirement of article first, § 7, of our constitution means simply this: 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 affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories." Id. at 544-45, 594 A.2d 917.

Applying the Barton analysis to the present case, ⁴ we agree with the trial court that the information supplied by the informant, standing alone, was insufficient to establish probable cause. Where the suspicions engendered by an informant's tip would not have independently justified the issuance of a warrant, however, "the magistrate was not required to disregard the tip altogether, but could consider whether the tip and the [information gathered by the independent police] investigation together 'bridged the gap' between mere suspicion and probable cause." State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991); State v. Delmonaco, 194 Conn. 331, 341, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984).

This brings us squarely to the issue of whether, consistent with article first, § 7, of our constitution, or the fourth amendment to the United States constitution, the police may search a person's garbage placed at the curbside for disposal. If not, items seized in the search cannot provide the basis for seeking a warrant or for the magistrate's determination that probable cause exists to issue a search warrant. See Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2535, 101 L.Ed.2d 472 (1988); State v. Ostroski, 201 Conn. 534, 544-45, 518 A.2d 915 (1986). In the present case, without the corroborating information obtained from the garbage pulls, deficiencies in the warrant affidavit regarding the information supplied by the informant would prevent mere suspicion from ripening into a determination of probable cause.

In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court determined that the fourth amendment to the United States constitution does not prohibit warrantless searches of garbage left outside the curtilage of a residence, namely, at the curb of a public street, for collection and disposal. The defendant, however, asks us to conclude that article first, § 7, of the Connecticut...