State v. DeNegris

• Decision Date: 28 June 1965
• Citation: 153 Conn. 5,212 A.2d 894
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James DeNEGRIS. Supreme Court of Errors of Connecticut

Page 894

212 A.2d 894

153 Conn. 5

STATE of Connecticut v. James DeNEGRIS.

Supreme Court of Errors of Connecticut.

June 28, 1965.

Alfonse C. Fasano, New Haven, for appellant (defendant).

George R. Tiernan, State's Atty., for appellee (state).

Before KING, C. J., and MURPHY, ALCORN, SHANNON, and HOUSE, JJ.

ALCORN, Associate Justice.

The defendant was convicted, in a trial to the court, of engaging in horse race betting activity in violation of § 53-295 of the General Statutes, third offense. He has appealed and has made fourteen assignments of error which raise three issues: (1) whether the search warrant under which the arresting officers entered his house was invalid because of the insufficiency of the affidavit on the basis of which the warrant was issued; (2) whether certain evidence was improperly admitted; and (3) whether, on all the evidence, his guilt was proved beyond a reasonable doubt. The assignments of error attacking the finding are without merit. Claims as to the accuracy of the court's rulings on motions to dismiss and to strike out are disposed of by the consideration of the three main issues.

We consider first the attack on the search warrant. The facts may be briefly summarized. On August 29, 1963, a major and a sergeant of the state police made affidavit before a judge of the Superior Court that they had received information from a person who had furnished reliable information in the past, and which had been completely substantiated by subsequent investigation, that a single-family, ranch-type house at 10 Bailey Drive in West Haven had been and was then being used to receive and disseminate information in violation of the state gaming laws and contained slips, moneys, papers, paraphernalia, memoranda and telephones used in connection with the crimes of policy playing and pool selling; that investigation showed the house to be occupied by James DeNegris and his wife, Marie, both of whom are described in the same way and have the same birth dates as persons registered with the motor vehicles department under the names of James and Marie Carrano; that both James and Marie Carrano have police records for pool selling; that electric service to the house is billed to James Carrano; that two telephone service wires lead into the house and are connected to two unlisted telephones and to a third extension telephone. After reciting other observations made at the house, the affidavit concludes with an allegation of the existence of probable cause for the issuance of a search warrant for the property described. The judge of the Superior Court to whom the affidavit was presented found that the affiants had probable cause to believe that property used for the purpose of policy playing and pool selling was concealed in the house. He accordingly issued a search warrant on August 29, 1963.

The trial court concluded that the search warrant was valid, that the search and the seizure were legally carried out, and that the defendant was guilty as charged. The defendant gives five reasons for his claim that the affidavit was inadequate to support the issuance of the search warrant. The first is that it failed to state a date for the informant's observation. This claim is raised for the first time in the brief. We find no mention of it among the grounds specified in a motion to suppress made prior to the trial, in the objections to evidence offered at the trial, or in the claims of law, and consequently we do not consider it. State v. McLaughlin, 132 Conn. 325, 339, 44 A.2d 116. The second claim is that the affiants did not assert a belief in the existence of probable cause for the issuance of the warrant. General Statutes § 54-33a. This claim not only was not raised at the trial but also is without merit inasmuch as the affidavit, by the language used, sufficiently asserted a belief in the existence of probable cause. The remaining three reasons assigned for the claimed insufficiency of the affidavit amount to the single proposition that it lacked allegations necessary to support a finding of probable cause by the judge who issued the warrant.

Both the fourth amendment to the constitution of the United States and § 8 of article first of the Connecticut constitution provide that no search warrant shall issue except upon probable cause supported by oath or affirmation. The protection afforded to the citizen by these constitutional provisions requires an impartial and deliberate determination of probable cause by the authority empowered to issue the warrant. United States v. Ventresca, (Mar. 2, 1965), 380 U.S. 102, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 687. The purpose served by the affidavit is to enable the issuing authority to weigh the persuasiveness of the facts relied upon by the affiant and, from them, to determine whether the necessary probable cause exists. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503. Technical nicety of phrase is not required in the affidavit so long as the recital of the underlying circumstances permits the issuing authority to perform his independent function of determining the existence of probable cause. United States v. Ventresca, supra. The recital must be of facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time. Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260. Because of the great difference which exists between a finding of guilt and a finding of probable cause, hearsay information from an informer may enter into the determination of probable cause so long as a substantial basis is shown for crediting the hearsay. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327. The basic question presented by the attack made here on the validity of the search warrant, therefore, is whether the judge who issued it had, in the affidavit presented to him, a substantial basis for finding that probable cause existed for issuing the warrant, after considering the facts alleged, including those which tended to confirm the reliability of the hearsay information recited. See cases such as Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Aguilar v. State of Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723. His conclusion that probable cause existed is to be sustained so long as there was a substantial basis for it. Aguilar v. State of Texas, supra.

The affidavit showed that the officers had information from an informer that the premises in question were then being used for gambling purposes. This information was considered reliable because the informer had furnished reliable information in the past. Upon independent investigation the officers had determined that the premises, a modest dwelling, was occupied by a man and...