State v. Mordowanec

• Decision Date: 22 January 2002
• Docket Number: (SC 16251)
• Citation: 788 A.2d 48,259 Conn. 94
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. MICHAEL W. MORDOWANEC

259 Conn. 94

788 A.2d 48

STATE OF CONNECTICUT v. MICHAEL W. MORDOWANEC

(SC 16251)

Supreme Court of Connecticut.

Argued April 20, 2000.

Officially released January 22, 2002.

McDonald, C. J., and Borden, Katz, Palmer and Sullivan, Js.¹ Ira B. Grudberg, with whom was Alinor C. Sterling, for the appellant (defendant).

Bruce R. Lockwood, deputy assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, Francis J. McQuade, supervisory assistant state's attorney, and John Kerwin, assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, C. J.

The defendant, Michael W. Mordowanec, appeals from his conviction, rendered after a conditional plea of nolo contendere, of the crimes of cultivation of marijuana in violation of General Statutes § 21a-277 (b), possession of four ounces or more of marijuana in violation of General Statutes § 21a-279 (b), and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c).² On appeal, the defendant claims that the trial court improperly: (1) determined that a warrantless thermal imaging scan of the defendant's commercial premises did not constitute a search under the federal and state constitutions; (2) concluded that the defendant had failed to establish that false information was included intentionally or recklessly in the application for a warant to search those premises, in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); and (3) determined that there were sufficient facts in the affidavit accompanying the search warrant application to establish probable cause. We affirm the judgment of the trial court.

The following facts are relevant to the defendant's claims on appeal. On February 9, 1996, a judge of the Superior Court issued a warrant to search the business premises of L & M Home Improvement (L & M) at 151 Main Street in Seymour. Seymour police officers executed that warrant and discovered on L & M's second floor nineteen marijuana plants, lights used to grow the plants and other items relating to indoor marijuana cultivation and sales.³ As a result, the defendant and his brother, Daniel Mordowanec,⁴ the operators of L & M, were arrested and charged.

Prior to trial, the defendant moved to suppress all evidence seized pursuant to the search warrant, arguing that the warrant was obtained in violation of his rights under the fourth and fourteenth amendments to the United States constitution, and article first, §§ 7 and 8, of the Connecticut constitution.⁵ In the trial court, the defendant argued that the evidence seized in the execution of the warrant should be suppressed because the affidavit in support of the warrant did not present sufficient evidence for a finding of probable cause. The defendant's motion to suppress included a request for a hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154.⁶ In its memorandum of decision, the trial court noted that although it "felt that the [defendant] initially failed to sufficiently demonstrate that the affiants acted with `deliberate falsehood or reckless disregard for the truth,' the court nevertheless gave the [defendant] the benefit of the doubt and allowed preliminary testimony in a Franks-type hearing."

In its memorandum of decision, the trial court found the following facts: "The application for the warrant was supported by the affidavit of Det./Sgt. James Hayes of the Seymour police department and Special Agent David Hoyt of the [United States] Drug Enforcement Administration. The application and affidavit contained several basic allegations. First, Officer Hayes received an anonymous [tele]phone call from an unknown male caller who stated that he observed approximately twenty to twenty-five six-foot tall marijuana plants growing inside a room under tubular, purplish lights on the second floor of the building housing [L & M]. The caller stated that he made the observation through a slightly opened door from the rear fire escape of the building while taking a cigarette break from a karate class, which is located on the third floor of the building, in which his child was enrolled. The caller also indicated that he detected a strong odor of marijuana, claiming that he `knows marijuana citing the fact that he is a "Vietnam vet.'" Affidavit and Application for Search and Seizure Warrant, ¶3. The caller described two males located on the second floor who he believed to be `the guys from L & M,' one heavy-set and balding and the other with glasses and his hair tied back in a ponytail. Id. He also stated that he did not think the males saw him and that `you better move quick or [you're] gonna lose it.' Id.

"The second affiant, Special Agent Hoyt, attested to his knowledge from `training and experience that individuals who grow marijuana indoors commonly utilize 1,000 watt metal halide or high pressure sodium lights to' grow marijuana, and that the lights appear `bluish in color.' Affidavit and Application for Search and Seizure Warrant, ¶ 4.

"In paragraph 5, Officer Hayes indicated that from his personal knowledge the descriptions of the two males fit Daniel [Mordowanec] and [the defendant]. He further verified by a visit to the third floor of 151/153 Main Street that there was an enclosed fire escape stairway in the rear of the building. See Affidavit and Application for Search and Seizure Warrant, ¶6. In addition, assessor's records were obtained which showed that the building was owned by the [defendant's] mother.

"The second allegation relied upon in the application for the search warrant was a claimed increase in the electrical power usage at the property. On February 7, 1996, an administrative subpoena was obtained and executed at Northeast Utilities for records of kilowatt electrical usage covering two years of service for 151 Main Street. The records revealed `a clear kilowatt hour usage increase [of 474 kilowatt hours] ... for the period covering December 1995 to January of 1996 as compared to the previous one month period, and more significantly, when compared to the same one month period one year ago. Affidavit and Application for Search and Seizure Warrant, ¶8.

"The final allegations relied upon in the application were the results of an external inspection of the heat emanating from the building at 151/153 Main Street through employment of a thermal imaging device. On February 9, 1996, at approximately 12:30 a.m., two Seymour police detectives and a Connecticut state police trooper fixed an `Agema' Model 210 thermal imaging device on the building. Affidavit and Application for Search and Seizure Warrant, ¶9, 10. The device measured `a significantly higher surface temperature on the second floor than that of the first and third floors and adjacent buildings.' Affidavit and Application for Search and Seizure Warrant, ¶10. The affiant concluded that `[t]his is consistent with the heat that would be generated by the high power artificial lighting systems commonly used in the indoor cultivation of marijuana.' Id. Furthermore, upon inspection of the town of Seymour building permits and assessor's field card, it was evident that `only one oil fired hot water furnace [was] being used to heat said structure and ... this furnace is located in the basement of the building and would not explain a high amount of heat emanating from the second floor.' Affidavit and Application for Search and Seizure Warrant, ¶11."

The trial court then rejected each of the defendant's arguments in support of his motion to suppress. The court stated that "[a]though the [defendant] demonstrated that the evidence of electrical kilowatt usage obtained by the affiants applied to the wrong floor of the building at 151/153 Main Street, the [defendant has] failed to establish that the affiants engaged in a deliberate falsehood or reckless disregard for the truth; rather, the evidence indicates that in their effort to determine the electrical kilowatt usage of the second floor of the building, the affiants were merely innocently mistaken in their belief that the bill for 151 Main Street included the second floor." The court also concluded that the thermal imaging scan did not constitute a search within the meaning of the federal or state constitutions. The trial court concluded that the affidavit presented sufficient objective indicia of reliability to justify a finding of probable cause and the issuance of a search warrant.

After entering his conditional plea of nolo contendere, the defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). On appeal, the defendant claims that the trial court improperly: (1) determined that a warrantless thermal imaging scan of the defendant's commercial premises did not constitute a search under the federal and state constitutions; (2) concluded that the defendant had failed to establish that the affiants intentionally or recklessly included false information in the affidavit; and (3) concluded that the affidavit presented sufficient facts for a finding of probable cause. We affirm the judgment of conviction.

I

The defendant claims that the trial court incorrectly determined that the warrantless thermal imaging scan of his commercial premises did not constitute a search in violation of his rights under the federal and state constitutions. The state counters that the trial court properly concluded that a thermal imaging scan is not a search and that, even if the trial court was incorrect, there were sufficient other facts in the affidavit to establish probable cause. We agree with the state that there were sufficient other facts in the affidavit to establish probable cause and do not reach the issue of whether the warrantless thermal imaging scan of the defendant's commercial premises constituted a search. The United States...