State v. Delmonaco

• Decision Date: 26 November 1984
• Citation: 481 A.2d 40,194 Conn. 331
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony DELMONACO.

Page 40

481 A.2d 40

194 Conn. 331

STATE of Connecticut v. Anthony DELMONACO.

Supreme Court of Connecticut.

Argued May 2, 1984.

Decided Aug. 28, 1984.

Certiorari Denied Nov. 26, 1984.

See 105 S.Ct. 511.

Ronald E. Cassidento, West Hartford, with whom, on the brief, was Kenneth J. Harris, Stamford, for appellant (defendant).

Gary Strickland, law student intern, with whom were Thomas P. Miano, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., for the appellee (State).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and GRILLO, JJ.

SPEZIALE, Chief Justice.

The defendant, Anthony Delmonaco, entered a plea of nolo contendere to a charge of possession of a narcotic substance with intent to sell, General Statutes (Rev. to 1981) § 19-480(a). The trial court rendered judgment of guilty and sentenced the defendant to a term of ten years imprisonment. The defendant has appealed, claiming error in the trial court's denial of his motion to suppress evidence. ¹ We find no error.

The facts surrounding the defendant's arrest are not in dispute: On October 8, 1981, officers of the Berlin police department and the Statewide Narcotics Task Force, acting under authority of a search and seizure warrant, conducted a search of room 12 of the Plaza Motel in Berlin. The warrant authorized the seizure of, inter alia, any restricted substances and any related paraphernalia. The officers discovered and seized a quantity of cocaine, a restricted substance, in the room and arrested the defendant, who occupied the room at the time.

The defendant was charged by information in two counts with the crimes of possession of a narcotic substance with intent to sell, General Statutes (Rev. to 1981) § 19-480(a), and possession of a narcotic substance, General Statutes (Rev. to 1981) § 19-481(a). On November 8, 1982, the defendant filed a pretrial motion to suppress, inter alia, all evidence seized from room 12 of the Plaza Motel, claiming that the authorizing warrant was issued "illegally and without probable cause."

At the beginning of a hearing on that motion assistant state's attorney Thomas P. Miano informed the court that one of the affiants, Detective Lawrence Skinner, had recently learned that the representations contained in one paragraph of the warrant affidavit ² were untrue. Paragraph four of the affidavit had stated that Officer Annunziata of the Berlin police department had observed the defendant arrange a sale of drugs with another person in the Speak Easy Cafe in Berlin. Shortly before the hearing Annunziata told Skinner that he had been mistaken in his earlier allegation and that the defendant was not the man he had observed arranging the drug sale. Skinner then brought this information to the attention of assistant state's attorney Miano. With the full agreement of both the state and the defendant the trial court then examined the warrant excluding paragraph four. The court concluded that the remainder of the warrant reflected sufficient probable cause to justify the search and therefore denied the defendant's motion to suppress. The defendant then entered a plea of nolo contendere on the first count to the charge of possession of a narcotic substance with intent to sell.

On December 17, 1982, the trial court adjudged the defendant guilty on the first count of the crime of possession of a narcotic substance with intent to sell, General Statutes (Rev. to 1981) § 19-480(a), and sentenced him to a term of imprisonment of ten years. ³

On appeal the defendant claims that the trial court erred in denying his motion to suppress. He claims that: (1) the evidence seized should have been suppressed solely because the warrant contained an intentionally or recklessly false statement, regardless of whether the remainder of the warrant demonstrated probable cause; and (2) that the warrant affidavit, with the erroneous information excluded, failed to demonstrate probable cause sufficient to justify the issuance of the warrant. ⁴

I

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court defined the protections afforded by the fourth amendment to the federal constitution in circumstances where a search warrant has been issued by a magistrate in reliance on an affidavit that contains false information. The court held that if a criminal defendant who has standing to challenge the search can establish by a preponderance of the evidence that the affiant included the false information either knowingly or with reckless disregard for the truth, the court must then examine the affidavit exclusive of the false information. Id., 155-56, 98 S.Ct. 2676-77. Then, if "the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id., 156, 98 S.Ct. 2676; ⁵ see State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, --- U.S. ----, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984). The corollary to that rule is, of course, that if the affidavit's remaining content independently establishes probable cause, the warrant is valid and the evidence seized pursuant to it need not be suppressed.

The rule announced in Franks is designed to uphold fourth amendment protections against unlawful searches and seizures. See U.S. Const., amend. IV. On appeal the defendant contends, for the first time, that article first, § 7 of the Connecticut constitution should be construed as providing a broader protection against unlawful searches, one that is not adequately sustained by the rule of Franks. He argues that the Franks rule is insufficient because it allows police officers to include false information in an affidavit at the risk only of having the false information excised if discovered and probable cause reassessed on the basis of the affidavit's accurate representations. He argues, in effect, that this leaves the police in a "can't-lose" situation when deciding what information to include in an affidavit and serves as an ineffective prophylaxis against searches that are unsupported by probable cause.

However persuasive the defendant's claim might be, it is not properly before this court. The defendant's argument depends on a finding that the affiant knowingly or recklessly falsified the warrant affidavit. At the hearing on his motion to suppress, when the state admitted the error in the affidavit and offered to have the court consider the warrant's sufficiency exclusive of paragraph four, the defendant readily agreed. He thus failed to seek the opportunity to establish by a preponderance of the evidence that the affiant, Skinner, had knowingly or recklessly included false information in the affidavit. Having accepted all that was due him under Franks (a determination of probable cause exclusive of the false information) without objection, the defendant cannot now seek a rehearing ⁶ on the issue.

Furthermore, we note that after receiving Skinner's testimony during a hearing on the motion to suppress the trial court observed that Skinner's inclusion of erroneous information in his affidavit "comes about quite honestly." Defense counsel agreed with the trial court's conclusion, stating that the information conveyed in paragraph four "was a mistake" and not a deliberate falsehood. Thus, the rule for which the defendant argues is inapplicable to the facts of this case as found by the trial court.

II

The defendant also claims that the trial court erred in finding that the affidavit, absent paragraph four, contained probable cause to justify issuance of the warrant. ⁷

In reviewing a search warrant affidavit the court "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)." State v. DeChamplain, 179 Conn. 522, 527-28, 427 A.2d 1338 (1980); see State v. Arpin, 188 Conn. 183, 193, 448 A.2d 1334 (1982). "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 ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched." (Emphasis in original; citations omitted.) State v. DeChamplain, supra, 179 Conn. 528-29, 427 A.2d 1338; see State v. Arpin supra. The reviewing court may consider only the information that was actually before the issuing judge at the time he or she signed the warrant. Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958); 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).

A fair reading of the warrant affidavit, excluding paragraph four, discloses the following facts: Two unnamed, reliable informants had stated that the defendant resided in room 12 of the Plaza Motel. The unnamed informants also stated that the defendant sold drugs, consorted with other drug dealers, and that he hosted "wild parties" in his room. Skinner and his co- affiant, Officer Joseph Sazanowicz of the Berlin police department, conducted a surveillance of room 12 of the Plaza Motel at various times. Between 1 a.m. and 6 a.m. on September 6, 1981, Skinner observed the defendant, accompanied by an associate known to Skinner as a drug dealer, make repeated trips from the Speak Easy Cafe to room 12. During the evening hours of September 30, 1981, Skinner observed several persons...