State v. Holley

• Decision Date: 28 December 2016
• Docket Number: SC 19662
• Citation: 152 A.3d 532,324 Conn. 344
• Parties: STATE of Connecticut v. Jubar T. HOLLEY
• Court: Connecticut Supreme Court

324 Conn. 344

152 A.3d 532

STATE of Connecticut

v.Jubar T. HOLLEY

SC 19662

Supreme Court of Connecticut.

Argued October 21, 2016

Officially released December 28, 2016^*

William A. Adsit, North Haven, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Jennifer F. Miller, deputy assistant state's attorney, and John F. Fahey, senior assistant state's attorney, Hartford, for the appellee (state).

Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.

EVELEIGH, J.

The defendant, Jubar T. Holley, appeals from the judgment of conviction rendered by the trial court following his pleas of nolo contendere; see General Statutes § 54–94a ;¹ to four counts of criminal possession of a firearm in violation of General Statutes (Rev. to 2013) § 53a–217 (a).² The defendant entered these pleas after the trial court's denial of his motion to suppress certain evidence discovered following the execution of a search warrant at his house. In this appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence seized as a result of the search warrant that the defendant claims was issued without a showing of probable cause in violation of the fourth amendment to the United States constitution³ and article first, § 7, of the Connecticut constitution.⁴ We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In March 14, 2013, Supervisory Inspector Michael Sullivan of the Connecticut Division of Criminal Justice and Detective Zachary Sherry of the Hartford Police Department (affiants) applied for a search and seizure warrant pertaining to the defendant's residence, a single-family home located in the town of East Hartford. The affiants were assigned to the Greater New Britain Shooting Task Force, which is described as a multiagency investigative unit charged with reducing violent crime in the greater New Britain area. The affiants claim over thirty-five years of combined investigative experience.

In their application for a search warrant, the affiants averred what may be summarized as follows: On March 4, 2013, Sullivan was in contact with David Pierro, who claimed he was a retired police officer from Port Chester, New York. Pierro stated that he had sold a "M16 AR 15 A2 upper receiver" (upper receiver) to the defendant through the website Gunbroker.com. Pierro stated that he notified the police regarding this sale because he had performed an Internet search on the defendant's name and discovered that the defendant had previously been involved in a shooting.

The affiants discovered that the defendant had a prior conviction for conspiracy to commit assault in the first degree, stemming from a 1994 shooting in New Britain. Sullivan informed Pierro of this fact. Having confirmed the defendant's felony status, Pierro then forwarded documents from Gunbroker.com to Sullivan indicating that the defendant had made eight other transactions through the website in the previous two years. Pierro also agreed to ship the upper receiver to Sullivan upon receipt of payment from the defendant so that the affiants could arrange a controlled delivery of the upper receiver to the defendant.

The affiants averred that they confirmed relevant information regarding the defendant's address. They confirmed that the shipping address that the defendant reportedly provided to Pierro belonged to the defendant by verifying land records and verifying the automobile registration of a car parked in the driveway. Additionally, the affiants verified that the telephone number the defendant provided to Gunbroker.com correlated to the defendant's address. On March 7, 2013, Sullivan received an e-mail from Pierro containing a copy of a money order for the purchase price of the upper receiver from the defendant, which listed the defendant's home address. On March 11, 2013, Sullivan received a package from Pierro through the mail containing the upper receiver and an envelope containing the money order, which listed the defendant's address as the return address.

Pierro informed the police that the "only reason" someone would purchase the upper receiver is if he were assembling an assault rifle. Pierro elaborated that the fact that the defendant made eight additional purchases within the previous two years on Gunbroker.com further supported his conclusion. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which was assisting the affiants in their investigation,⁵ agreed with Pierro's conclusion. Additionally, ATF Special Agent Jacob Berrick informed the affiants that he was able to access the defendant's most recent purchase on Gunbroker.com, a "MGW AR–15 AR15 90 round drum," which the affiants averred is a mechanism that holds the ammunition for the firearm, for $125.⁶ The affiants averred that the discovery of this transaction supported the conclusion that the defendant was purchasing separate firearm parts in order to assemble a complete, functioning firearm.

Moreover, the affiants averred that from their training and experience, they "know ... that typical [firearm] owners do not purchase firearms parts but rather purchase firearms as a whole. Those people that do purchase firearms parts are likely to have a greater interest and expertise in firearms than a typical firearms owner. It is therefore, very likely that [the defendant] has an advanced knowledge and interest in firearms and probably has other firearms in his possession." The affiants further averred that, from their training and experience, they have found that those who illegally possess firearms commonly store such firearms in their residence.

The search warrant was issued on March 14, 2013, and executed the following day. The police seized numerous firearms and firearm related items from the defendant's residence. The defendant filed a motion to suppress evidence claiming that the search warrant was not supported by probable cause. See Practice Book §§ 41–12 and 41–13 (4). After a hearing on the motion, the trial court denied the defendant's motion and later filed a memorandum of decision. The defendant entered pleas of nolo contendere to four counts of criminal possession of a firearm in violation of § 53a–217 (a), conditioned on his right to appeal the denial of his motion to suppress. See General Statutes § 54–94a ; Practice Book § 61–6 (a) (2) (A). This appeal followed.⁷

We begin by setting forth the relevant standard of review. "Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law .... The trial court's determination on [that] issue, therefore, is subject to plenary review on appeal." (Internal quotation marks omitted.) State v. Buddhu , 264 Conn. 449, 459, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2106, 158 L.Ed.2d 712 (2004).

The legal principles that guide our analysis are well established. Both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution prescribe that a search warrant shall issue only upon a showing of probable cause. "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 .... Although [p]roof of probable cause requires less than proof by a preponderance of the evidence ... [f]indings of probable cause do not lend themselves to any uniform formula because probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules .... Consequently, [i]n determining the existence of probable cause to search, the issuing [judge] assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Citations omitted; internal quotation marks omitted.) State v. Shields , 308 Conn. 678, 689–90, 69 A.3d 293 (2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 1040, 188 L.Ed.2d 123 (2014). The determination of probable cause is reached by applying a "totality of the circumstances" test. State v. Flores , 319 Conn. 218, 225, 125 A.3d 157 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1529, 194 L.Ed.2d 615 (2016) ; see also Florida v. Harris , ––– U.S. ––––, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) ("[W]e have consistently looked to the totality of the circumstances .... We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach." [Citations omitted.] ).

"The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the [issuing judge's] conclusion that probable cause existed." (Internal quotation marks omitted.) State v. Duntz , 223 Conn. 207, 215, 613 A.2d 224 (1992). "This court has recognized that because of our constitutional preference for a judicial determination of probable cause, and mindful of the fact that [r]easonable minds may disagree as to whether a particular [set of facts] establishes probable cause ... we evaluate the information contained in the affidavit in the light most favorable to upholding the issuing judge's probable cause finding .... We therefore review the issuance of a warrant with deference to the reasonable inferences that the issuing judge could have and did draw ...." (Internal quotation marks omitted.) State v. Flores , supra, 319 Conn....