State v. Diaz

• Decision Date: 20 July 1993
• Docket Number: No. 14554,14554
• Citation: 226 Conn. 514,628 A.2d 567
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ruben DIAZ.

Page 567

628 A.2d 567

226 Conn. 514

STATE of Connecticut v. Ruben DIAZ.

No. 14554.

Supreme Court of Connecticut.

Argued Feb. 9, 1993.

Decided July 20, 1993.

Adam J. Teller, Sp. Public Defender, for appellant (defendant).

Margaret Gaffney Radionovas, Deputy Asst. State's Atty., with whom, on the brief, were John T. Redway, State's Atty., and Bernadette Conway, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ. BORDEN, Associate Justice.

The certified issue in this appeal is whether a criminal defendant is entitled, pursuant to article first, § 7, of the Connecticut constitution, and General Statutes § 54-33f, ¹ to de novo review of an issuing judge's determination that probable cause existed to issue a search warrant. The defendant, Ruben Diaz, appeals, upon our grant of certification, from the judgment of the Appellate Court reversing the trial court's granting of the defendant's motion to suppress. We affirm the judgment of the Appellate Court.

The record reveals the following facts. The police submitted an application for a search warrant to Judge Joseph T. Gormley of the Superior Court. The application requested authorization to search the defendant's house at 36 Clinton Avenue in Old Saybrook for cocaine, cocaine related paraphernalia and other items commonly used in drug transactions. Attached to the application was the affidavit of state police officer Chester Harris and officer Cliff Barrows of the Old Saybrook police department. Each officer stated that he had extensive training and experience in narcotics investigations and enforcement.

The information provided in the affidavit can be summarized as follows. ² On the basis of information obtained from reliable informants and surveillance of controlled narcotics buys, the affiants asserted that Benjamin Perez and the defendant had been jointly engaged in selling narcotics, including cocaine, since March, 1990. At the time the application was filed, Perez resided at 34 Clinton Avenue in Old Saybrook. A "concerned person" reported to the police that a large number of individuals, consistent with narcotics trafficking, had been entering and exiting Perez' residence at 34 Clinton Avenue. Pursuant to a valid warrant, police previously had searched Perez' former residence located at 48 Bradley Street in Branford, during which they had seized a gun, packaging material for narcotics, a scale and cash that had been used in a "controlled buy."

The defendant resided at 36 Clinton Avenue, next door to Perez. The defendant was first seen by a known and reliable informant taking part in a drug transaction during the first week of March, 1990. During that transaction, the defendant, having received cash from a third person, turned the proceeds over to an individual matching Perez' description, who in turn entered 34 Clinton Avenue.

The police then arranged with a reliable informant for two controlled buys of cocaine from the defendant. On both occasions, the informant met with the defendant at 36 Clinton Avenue and "had a narcotics related conversation with [the defendant that] resulted in a Hispanic male bringing a quantity of white powder from # 34 Clinton Ave. to # 36 Clinton Ave." Each time the white powder tested positive for the presence of cocaine.

On the basis of the information contained in the affidavit, Judge Gormley issued a warrant authorizing the police to search the defendant's residence at 36 Clinton Avenue for cocaine and cocaine related paraphernalia. Police executed the warrant and seized cocaine, cocaine related paraphernalia and a shotgun. The state thereafter charged the defendant with possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). ³

The defendant moved to suppress the evidence seized, claiming that the application did not establish probable cause to believe that cocaine would be found at the defendant's residence at 36 Clinton Avenue. After reviewing the warrant and hearing arguments on the motion to suppress, the trial court, Hendel, J., granted the defendant's motion. The trial court concluded that the affidavit failed to establish probable cause to believe that narcotics would be found at the defendant's residence at 36 Clinton Avenue. The trial court dismissed the case upon the state's representation that, without the evidence, the state could not proceed. The trial court then granted the state permission to appeal pursuant to General Statutes § 54-96. ⁴

The state appealed to the Appellate Court, claiming that the trial court should have deferred to Judge Gormley's probable cause determination because there was a substantial factual basis for that decision. After applying the substantial basis test the Appellate Court agreed with the state and reversed the judgment of the trial court and remanded the case with direction to deny the motion to suppress. State v. Diaz, 27 Conn.App. 427, 607 A.2d 439 (1992). We granted the defendant's petition for certification to appeal, limited to the following question: "Do Article first, § 7, of the constitution of the state of Connecticut, Connecticut General Statutes § 54-33f and Practice Book § 822(4) ⁵ entitle the defendant to de novo review of the issue of probable cause, rather than the deferential review undertaken by the Appellate Court?" State v. Diaz, 223 Conn. 903, 610 A.2d 177 (1992). ⁶ We now answer this question in the negative.

I

Some background is in order. ⁷ First, the determination of whether probable cause exists to issue a search warrant under article first, § 7, of our state constitution is made pursuant to a "totality of the circumstances" test. State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). In determining the existence of probable cause to search, the issuing judge must make a "practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the 'veracity' and the 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991). "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." State v. Rodriguez, 223 Conn. 127, 135, 613 A.2d 211 (1992).

We have repeatedly held, therefore, that a reviewing court must uphold "the validity of [the] warrant ... [if] the affidavit at issue presented a substantial factual basis [including the inferences reasonably drawn from the affidavit] for the magistrate's conclusion that probable cause existed." (Internal quotations marks omitted.) State v. DeFusco, 224 Conn. 627, 642, 620 A.2d 746 (1993); State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992); State v. Rodriguez, supra, 223 Conn. at 135, 613 A.2d 211; State v. Barton, supra, 219 Conn. at 544, 594 A.2d 917. "In a doubtful or marginal case ... our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate's ... conclusion that the affidavit established probable cause." (Internal quotation marks omitted.) State v. DeFusco, supra.

Second, it is necessary to set out what we mean by the "substantial basis" scope of review of a warrant as applied to this case. The difference between what the issuing judge did and what the trial court did not do, and between what the Appellate Court did and what the trial court did not do, involves the drawing of the inference from the affidavit of whether narcotics would be found at the defendant's residence at 36 Clinton Avenue. The issuing judge drew the inference that narcotics would be found at that address, and the Appellate Court sustained that determination as a reasonable inference to be drawn from the affidavit. The trial court, on the contrary, declined to draw that inference from the affidavit.

We proceed under the certified question in this appeal on the necessary assumption that the issuing judge's inference was a reasonable inference, albeit not a necessary inference. If it were not a reasonable inference, the scope of review would be immaterial, because even under a "substantial basis" test we do not endorse unreasonable inferences. ⁸ If an inference drawn by an issuing judge is unreasonable, and that inference is critical to the ultimate determination of probable cause, the warrant is defective regardless of the scope of review employed to analyze the affidavit. See, e.g., State v. Duntz, supra, 223 Conn. at 220-21, 613 A.2d 224. The defendant, in fact, does not dispute that the issuing judge is entitled to draw reasonable inferences; rather, he challenges the standard by which those inferences should be reviewed. Moreover, the assumption that the inference was reasonable is implicit in our limited grant of certification to the legal issue of whether article first, § 7, requires de novo review. See footnote 6.

In cases like the present one, therefore, the substantial basis test has bite only if the inference drawn by the issuing judge is reasonable. Consequently, the substantial basis test means that the reviewing court must give deference to--must take as a given--all reasonable inferences drawn by the issuing judge, and then decide whether, based upon the facts explicitly stated in the affidavit, supplemented by those reasonable inferences, the affidavit establishes probable cause.

Thus, the question of whether to apply the substantial basis test or de novo review distills into the question of whether the reviewing trial court should, on the one hand, give deference to the reasonable...