State v. Marsala, 6088

• Decision Date: 29 August 1989
• Docket Number: No. 6088,6088
• Citation: 563 A.2d 730,19 Conn.App. 478
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael J. MARSALA.

Page 730

563 A.2d 730

19 Conn.App. 478

STATE of Connecticut v. Michael J. MARSALA.

No. 6088.

Appellate Court of Connecticut.

Argued May 24, 1989.

Decided Aug. 29, 1989.

Burton M. Weinstein, Bridgeport, with whom, on the brief, was Richard Emanuel, Branford, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gary W. Nicholson, Asst. State's Atty., for appellee (state).

Before SPALLONE, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

SPALLONE, Judge.

The defendant appeals from a trial court decision, rendered on remand, that the evidence seized pursuant to a defective warrant was admissible under the good faith exception to the exclusionary rule. The defendant claims that the trial court erred in finding that the police officers executing the warrant had a good faith belief in its validity. We disagree.

In October, 1986, the Monroe police executed a search warrant and seized evidence of drug trafficking from the defendant's home and person. The defendant was convicted, after a jury trial, of the crime of violating the state dependency producing drug law, General Statutes § 21a-278(b). The defendant appealed from the judgment of conviction claiming that the trial court erred (1) in denying his motion to suppress evidence seized from his person and (2) in denying his motion for judgment of acquittal on the grounds that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

The pertinent facts and our determination of the issues raised are fully set forth in State v. Marsala, 15 Conn.App. 519, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988). There, the defendant argued that the search that produced the evidence was conducted pursuant to an invalid warrant and that there was no legal justification for the warrantless search or arrest. The affidavit recited observations supplied by informants as the basis for probable cause to search the defendant's home and person, but contained nothing from which the issuing judge could have determined the basis of the informants' knowledge. Id., at 522, 545 A.2d 1151. We agreed with the defendant that the warrant was invalid, but remanded for a determination whether the good faith exception to the exclusionary rule adopted in State v. Brown, 14 Conn.App. 605, 543 A.2d 750 (1988), was applicable. State v. Marsala, supra, 15 Conn.App. at 526, 545 A.2d 1151.

On remand, following an agreement between counsel not to offer any further evidence, the trial court specifically made factual findings regarding whether the case fit within any of the four situations that would except it from the application of the exclusionary rule. See United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); State v. Brown, supra, 14 Conn.App. at 635, 543 A.2d 750. The trial court reached the following conclusions: (1) the magistrate issuing the warrant relied on an affidavit devoid of deliberate or reckless falsehoods; (2) the magistrate did not abandon his judicial role; (3) the police officers had a reasonable belief in the validity of the warrant; and (4) the affidavit and application described with particularity the places to be searched and the items to be seized. The defendant does not contest findings one, two or four. He challenges, however, the trial court's finding "that the police officer did have reasonable belief that the warrant was valid in accordance with Brown v. Illinois, [422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-64, 45 L.Ed.2d 416 (1975) (Powell, J., concurring) ]." The sole question now before us is whether the trial court erred in concluding on remand that the officers executing the warrant acted in objectively determinable good faith and that, therefore, the "good faith" exception to the exclusionary rule applied.

As a threshold matter, we must determine the applicable standard of review of the trial court's conclusion. Although there are no Connecticut cases that specifically set forth a standard to guide our review of a finding of "objective good faith," there are numerous federal cases that address this issue. In United States v. Hendricks, 743 F.2d 653, 656 (9th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985), the court stated that a trial court's determination of objective good faith under Leon is "subject to de novo review as a mixed question of fact and law." See also United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir.), cert. denied sub nom. Pinckard v. United States, 474 U.S. 949, 106 S.Ct. 314, 88 L.Ed.2d 295 (1985) ("ultimate question of good faith vel non is a legal issue"); United States v. Sager, 743 F.2d 1261, 1265 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985) (Leon standard akin to application of new legal criterion to same facts and therefore issue may be addressed for first time on appeal).

Because the fundamental fourth amendment right to be free from unreasonable searches and seizures is implicated, we approve the federal standard. Accordingly, we hold that the issue of the objective reasonableness of the executing officer's reliance on a search warrant, even if the affidavit supporting the warrant was insufficient to establish probable cause, is a question of law reviewable de novo by this court. The underlying facts upon which that determination is based are, however, binding on appeal unless clearly erroneous. Practice Book § 4061; United States v. Maggitt, 778 F.2d 1029, 1035 (5th Cir.1985).

We had previously determined that the executed affidavit and the application for the search warrant "lacked the indicia of probable cause." State v. Marsala, supra, 15 Conn.App. at 526, 545 A.2d 1151. We must now determine whether the absence of probable cause was so apparent that the officers "could not have harbored an objectively reasonable belief in the existence of probable cause." United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984).

Leon establishes a standard against which the executing officer's behavior is to be measured. The...