State v. Marsala, 14094

• Decision Date: 18 September 1996
• Docket Number: No. 14094,14094
• Citation: 42 Conn.App. 1,679 A.2d 367
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael MARSALA.

Page 367

679 A.2d 367

42 Conn.App. 1

STATE of Connecticut v. Michael MARSALA.

No. 14094.

Appellate Court of Connecticut.

Argued Feb. 26, 1996.

Decided July 2, 1996.

Certification Denied Sept. 18, 1996. ^*

C. Robert Satti, Jr., Assistant State's Attorney, with whom, on the brief, was Donald Browne, State's Attorney, for appellant (State).

Lauren Weisfeld, Assistant Public Defender, with whom, on the brief, was Richard Emanuel, Assistant Public Defender, for appellee (defendant).

Before LANDAU, SPEAR and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

This appeal is from the judgment of the trial court, Leavitt, J., granting the defendant's motion to suppress evidence seized during a police search of the defendant's residence pursuant to a search warrant. Thereafter, the trial court, Maiocco, J., granted the defendant's motion to dismiss the state's information based on his claim that there was insufficient evidence to proceed to trial once the motion to suppress was granted.

Pursuant to General Statutes § 54-96, ¹ the state filed a motion for permission to appeal and the motion was granted by the trial court. On appeal, the state claims that the trial court improperly determined that, under the "totality of the circumstances" test adopted by our Supreme Court in State v. Barton, 219 Conn. 529, 533, 594 A.2d 917 (1991) (Barton test), the search warrant affidavit lacked a sufficient basis to allow the issuing magistrate to find probable cause.

The following facts and procedural history are relevant to the resolution of this appeal. The defendant was arrested in October, 1986, by officers from the Monroe police department and charged with violating various narcotics offenses. The arrest stemmed from the seizure of contraband and drug paraphernalia from the defendant's person and residence following the execution of a search warrant. After a jury trial, the defendant was convicted in May, 1987, for two violations of the state dependency producing drug law, General Statutes § 21a-278(b). ² Following a series of appeals, ³ the matter was remanded for a new trial in which the trial court examined the search warrant affidavit anew.

In its memorandum of decision issued upon granting the defendant's motion to suppress, the trial court relied on State v. Duntz, 223 Conn. 207, 613 A.2d 224 (1992), as authority to apply the Barton test retroactively. Upon reviewing the search warrant affidavit under the Barton test, the trial court determined that the magistrate improperly determined that the affidavit established probable cause because "[t]he entire warrant was based on conjecture and surmise." The court opined that "the Monroe police warrant does not pass [Barton ] muster as to a finding of probable cause under 'the totality of the circumstances' test" because "[t]he warrant lacks even a sniff that drugs were being sold by the defendant," and "[n]ot one piece of information in the warrant was either corroborated or substantiated." We disagree with the result reached by that court.

I

Because the search warrant affidavit in this case was executed in 1986, and the Barton decision was rendered in 1991, as a threshold matter, we must determine whether the trial court was correct in applying the Barton test retroactively. While the state disputes the conclusion reached by the trial court after it reviewed the affidavit pursuant to Barton (see part II of this opinion), the state nevertheless asserts that the court was correct to apply the test retroactively.

The defendant argues that because the Barton test supplanted the two-pronged Aguilar- Spinelli ⁴ test previously used by our courts when reviewing search warrant affidavits; see State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985); we should recognize the Barton test as a "clear break" from the old rule and not apply it retroactively. The defendant also argues that the state waived its right to assert the validity of the search warrant under the Barton test. Neither argument has merit.

As a general rule, "judicial decisions apply retroactively. Robinson v. Neil, 409 U.S. 505, 507-508, 93 S.Ct. 876 [877, 878], 35 L.Ed.2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity. Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338 [1341], 79 L.Ed.2d 579 (1984)." (Internal quotation marks omitted.) State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986). Since the Barton decision, our appellate courts have consistently applied the Barton test retroactively. See, e.g., State v. Duntz, supra, 223 Conn. 207, 613 A.2d 224 (search warrant executed in October, 1986); State v. Rodriguez, 27 Conn.App. 307, 606 A.2d 22 (1992) (search warrant executed in June, 1990); State v. DeFusco, 27 Conn.App. 248, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993) (search warrant executed in October, 1991); State v. Hunter, 27 Conn.App. 128, 604 A.2d 832 (1992) (search incident to lawful arrest conducted in January, 1990); State v. Anziano, 26 Conn.App. 667, 603 A.2d 415 (1992) (search warrant executed in January, 1990); State v. Payne, 25 Conn.App. 428, 594 A.2d 1035, cert. denied, 220 Conn. 915, 597 A.2d 337 (1991) (arrest warrant executed in June, 1989). We conclude, therefore, that the trial court correctly applied the Barton test retroactively.

II

The state next claims that the trial court improperly failed to determine that, under the Barton test, the search warrant affidavit presented a substantial basis on which the issuing magistrate could conclude that probable cause existed.

In State v. Barton, supra, 219 Conn. at 544, 594 A.2d 917, our Supreme Court adopted the "totality of the circumstances" standard for determining probable cause used by the federal courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under the totality of the circumstances standard, "[w]hen 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....

"If a warrant affidavit does not provide a substantial basis for the finding of probable cause, then evidence or contraband seized in the execution of that warrant will be suppressed, even when the officer executing the warrant has relied in good faith on its authority. State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) ]." State v. Barton, supra, 219 Conn. at 544-45, 594 A.2d 917.

"Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... 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; and (2) there is probable cause to believe that the items named will be found in the place to be searched." (Citations omitted; internal quotation marks omitted.) Id., at 547-48, 594 A.2d 917. " '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 magistrate's conclusion that probable cause existed.' State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991)." State v. Duntz, supra, 223 Conn. at 215, 613 A.2d 224.

"This court's scope of review, in evaluating the existence of probable cause, is limited to the facts that appear on the four corners of the affidavit or facts that may be properly inferred from those facts. State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985). In so doing, we must use common sense; State v. Castano, 25 Conn.App. 99, 101, 592 A.2d 977 (1991); and defer to the reasonable inferences drawn by the [issuing] magistrate. State v. Barton, supra, 219 Conn. [at] 544-45 . Our role is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed. State v. Johnson, supra, 219 Conn. [at] 565 ." (Internal quotation marks omitted.) State v. Anziano, supra, 26 Conn.App. at 672, 603 A.2d 415.

We now consider the search and seizure warrant affidavit presented in this case in light of these principles. The Monroe police department submitted the warrant application for ex parte judicial approval on October 1, 1986. The affidavit contained the following information: "A named police officer from Trumbull notified the Monroe police that the defendant was a heavy seller of cocaine and other illegal drugs. The police had also received a telephone call from a resident of Swendsen Drive reporting that he had seen what he believed to be drug activity at [Marsala's residence at] 154 Swendsen Drive, that he had seen many vehicles drive up to the house, and that a bearded man came from the house, approached each vehicle and engaged in some sort of transaction. When the...