State v. Marsala

Decision Date07 August 1990
Docket NumberNo. 13830,13830
Citation579 A.2d 58,216 Conn. 150
CourtConnecticut Supreme Court
Parties, 59 USLW 2125 STATE of Connecticut v. Michael Joseph MARSALA.

Richard Emanuel, Asst. Public Defender, with whom was G. Douglas Nash, Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, HULL and SANTANIELLO, JJ.

SHEA, Associate Justice.

The dispositive issue in this appeal is whether evidence seized by police officers in violation of our state constitution may be admitted during a criminal trial, as part of the state's case in chief, under a "good faith" exception to the exclusionary rule. The question comes to us upon certification from a decision rendered by the Appellate Court; State v. Marsala, 19 Conn.App. 478, 563 A.2d 730 (1989); affirming the conviction of the defendant, Michael Joseph Marsala, for two violations of the state dependency producing drug law, General Statutes § 21a-278(b). 1 We conclude that a "good faith" exception to the exclusionary rule is incompatible with the constitution of Connecticut, article first, § 7, 2 and, therefore, that the decision of the Appellate Court, applying such an exception, must be reversed.

The facts underlying the defendant's conviction are set forth in an opinion rendered by the Appellate Court after the defendant had appealed from that judgment. State v. Marsala, 15 Conn.App. 519, 520-22, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988) (Marsala I ). Incriminating evidence was seized from both the defendant's person and his home, pursuant to a search warrant issued for the purpose of allowing police officers to search those two places. More pertinent to our decision today, however, are the legal conclusions reached by both the trial and Appellate courts on the basis of the facts set forth in Marsala I. After a hearing conducted for the purpose of ruling on the defendant's motion to suppress the evidence seized, the trial court granted the motion as to the evidence taken from the defendant's home but denied the motion as to the evidence obtained from his person.

The trial court concluded that the affidavit, submitted in support of the search warrant application, contained no information from which the issuing judge could have determined the basis of knowledge of two informants whose observations had been relied on by the affiants. Further, the trial court concluded that information contained in the affidavit detailing a surveillance of the defendant conducted by police officers did nothing to corroborate, in regard to a search of the defendant's home, the informants' descriptions of the defendant's activities. Marsala I, supra, 15 Conn.App. at 522, 545 A.2d 1151; see State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). 3 The trial court denied, however, the motion to suppress the evidence seized from the defendant's person, reasoning that observations of the defendant's activities, made by one of the affiants, had corroborated the details provided by the informants and that the combined information, therefore, constituted probable cause to arrest the defendant. Marsala I, supra.

Before the Appellate Court, the state conceded that the "warrant executed upon the person and residence of the defendant was fatally defective in that the underlying affidavit lacked the requisite indicia of reliability and basis of knowledge" of the two informants. Id. 15 Conn.App. at 523, 545 A.2d 1151. The state argued, however, that the admission of the items seized from the defendant's person could be justified under the investigative stop doctrine as set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Appellate Court rejected this contention; Marsala I, supra, 15 Conn.App. at 523-24, 545 A.2d 1151, but relying upon its prior decision in State v. Brown, 14 Conn.App. 605, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988), remanded the case to the trial court so that it could resolve certain factual matters and determine whether the admission of the seized items could be justified under the good faith exception to the exclusionary rule established by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). Marsala I, supra, 15 Conn.App. at 526, 545 A.2d 1151.

On remand, the trial court issued a written decision in compliance with the directive of the Appellate Court to make four specific determinations. The trial court concluded: (1) "the affiants did not mislead the issuing judge"; see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) there was "no evidence that the issuing judge wholly abandoned his judicial role"; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); (3) "the police officers did have a reasonable belief that the warrant was valid"; see Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring); and (4) "the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid." See United States v. Leon, supra, 468 U.S. at 923, 104 S.Ct. at 3421. In his appeal from this decision, the defendant did not contest the trial court's first, second or fourth conclusions. State v. Marsala, 19 Conn.App. 478, 480, 563 A.2d 730 (1989) (Marsala II ). Thus, the issue before the Appellate Court was "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." Id. The Appellate Court concluded, upon its own independent review of the record and transcripts, that the trial court had not erred and that the evidence seized from the defendant's person was properly admitted at his trial. Id., at 483, 563 A.2d 730.

We granted the defendant's petition for certification; see Practice Book § 4126 et seq.; limited to the following issue: "Does a good faith exception to the exclusionary rule exist under Connecticut law; and if so, did the Appellate Court err in concluding that the good faith exception was applicable in this case?" State v. Marsala, 213 Conn. 805, 567 A.2d 836 (1989). We answer the first portion of this question in the negative and, therefore, need not consider the second portion.

I

The defendant claims that apart from any constitutional considerations, General Statutes § 54-33f 4 mandates the exclusion of illegally seized evidence and that the statute's operation is unimpeded by any good faith exception. See Practice Book § 822. 5 The defendant relies principally on: (1) § 54-33f(c), which provides that if a suppression motion is granted, "the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial " (emphasis added); (2) Practice Book § 821, which provides that, upon motion of the defendant, "the judicial authority shall suppress potential testimony or other evidence if he finds that suppression is required under the constitution or laws of the United States or the state of Connecticut"; and (3) the fact that there have been two unsuccessful legislative attempts to amend § 54-33f, so as to include a good faith exception to the exclusionary rule. See 1983 House Bill No. 5125; 6 1985 House Bill No. 7011.

The defendant's reliance upon Practice Book § 821 is without merit. That provision establishes no substantive standard for the suppression of illegally seized evidence, but, rather, depends upon the applicable interpretation of either the United States or Connecticut constitution to determine whether evidence should be suppressed. If the provisions of either constitution, as currently interpreted, require the suppression of any evidence seized, § 821 merely directs the judicial authority to carry forth that suppression. In that regard, it is the constitution either of the United States or the state of Connecticut that requires the suppression, not § 821. Accordingly, § 821 incorporates the existing standards of search and seizure jurisprudence, as set forth by this court, our Appellate Court and the United States Supreme Court, leaving to trial courts the task of determining whether suppression is required in a particular case. See State v. Brown, supra, 14 Conn.App. at 625-26, 543 A.2d 750.

Regarding the defendant's claim that § 54-33f and the virtually identical provisions of § 822 preclude the adoption of a good faith exception to the exclusionary rule, we agree with the Appellate Court's resolution of this issue in State v. Brown, supra, 14 Conn.App. at 623-26, 543 A.2d 750, holding that the statute and Practice Book provisions are procedural rather than substantive and, therefore, do not define the extent of the exclusionary rule under Connecticut law. We have previously noted that § 54-33f was enacted in response to the United States Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), 7 and that prior to that decision there was "no [express] provision in our practice for a motion to suppress." State v. Mariano, 152 Conn. 85, 89, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962 (1965).

Section 54-33f provides expressly that evidence may be suppressed on the ground that "[t]he property was seized without a warrant," and that if the motion is granted, "the property ... shall not be admissible in evidence at any hearing or trial." If we were to accept the defendant's contention that § 54-33f provides...

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